ABDUR REHMAN, J.--This appeal under section 417, Cr. P.C. Is directed against the judgment dated 26-8-1982 passed by Mr. Saleemuddin Memon, the then 1 Additional Sessions Judge, Karachi whereby he acquitted the respondents of a charge under sections 148, 302/149 and section 201, P.P.C.
2. The F.I.R. In this case was lodged on 8-9-1975 by Habibur Rehman's and is translated as under:-- "I am resident of the above address, alongwith me my cousin Muzaffaruddin Khan alias Irshad son of Muhammad Nabi alias Muhammad Din aged 23 years was also residing with me. Today in the morning when I was present in my house Muzaffaruddin Khan in connection with his service at about 6-15 a.m. Went from the house and after few minutes a hue and cry I heard. I went out on the road from my house and saw that near the Mumtaz Provisional Store Fazal Ali, Mustafa Abbas alias Mustafa, Iqtadar, Syed Muhammad Abbas and Faqir caught hold my brother Muzafferuddin alias Irshad and beaten and blood is coming out from his abdomen. The knives were in the hand of Fazal Ali and Mustafa Abbas. Before me Waqar Ahmed, Shabbir Hussain Khan, Muhammad Matin Khan, Muhammad Hanif Siddiqi and Shamshuddin were reached and saw this incident. After seeing me accused persons ran away from the scene of occurrence leaving my brother in injured condition. I asked Waqar to arrange for vehicle and enquired from my brother Irshad who told that Fazal Ali and Mustafa Abbas injured him with knife on his abdomen and Muhammad Abbas Iqtadar and Mazhar has also beaten him with fist blows after caught hold. The witnesses has corroborated.
I in a Suzuki who was brought by Waqar alongwith Waqar took my brother to the Jinnah Hospital near the Karsaz my brother expired due to the injuries. Whose dead body was, brought to Jinnah Hospital. Cause of enmity which told by my brother that today in morning a boy named Ghandist and my brother Irshad had exchanged hot words due to loud speaker of Mosque. Soon after it Mustafa Abbas and Iqtadar reached there. Irshad told them to go away as this is the matter between them. But Mustafa Abbas refused to go, away and started quarrel with him. Irshad slapped him upon Which Mustafa Abbas and Iqtadar went away asking them that-just after coming I will take revenge. During this time my brother after coming to house went to his duty the above accused named above with common intention jointly assaulted and injured my brother Irshad with intention to kill him armed with knives and who died. I lodged report and complaint against the five above accused persons named above."
3. The F.I.R. Was taken down by Sub-Inspector Syed Ali Abbas, of Drig Colony Police Station, Karachi on a plain paper, at Jinnah Hospital where he had reached on receiving a telephonic message about this incident. He then sent the F.I.R. To the police station for being incorporated in 154, Cr.P.C.
Book. He inspected the place of Wardat and prepared the Inquest Report. He then handed over the case papers to S.H.O., Mukhtar Ahmed. The S.H.O. Mukhtar Ahmed inspected the scene of offence on the showing of first informant Habibur Rehman's and made enquiries from P.Ws. He then arrested respondents Mustafa Abbas and Muhammad Abbas on the same day. Both the respondents had injuries on their person. He secured their clothes which were stained with blood.
He seized these clothes under Mashirnama in presence of Shabbir and Jamila and sealed the same. He also secured blood-stained earth from the scene of offence and sealed the same. On 14- 9-1975 the S.H.O. Arrested respondent Fazal Ali and on 15-9-1975 he secured two knives on the pointation of Fazal Ali. He sent blood-stained earth, blood-stained clothes secured from the persons of above-named accused and those two knives secured from Fazal Ali to Chemical Analyser. These articles were found by him to be stained with human blood. He then challaned the case.
4. A charge was framed against the respondents under the above section to which they pleaded not guilty and claimed to be tried. In their statements under section 342, Cr.P.C. The respondents have denied all the prosecution allegations and have alleged that P.Ws are related inter se as well as related to the deceased. Respondent Iqtedar Hussain has stated that first informant Habibur Rehman's is on inimical terms with his father. Respondent Fazal Ali has taken the plea of alibi and stated that he was present at Nawabshah in his college at the time of incident. Respondent Mustafa Abbas has stated that on the day of incident he and Muhammad Abbas were coming back from the mosque after offering prayers and they saw that Ghandi was fighting with Irshad, hence they got them separated. They have alleged that they have been falsely implicated in the case.
The prosecution has examined the first informant Habibur Rehman's and P.Ws. Jamil Khan and Shabbir Hussain as eye-witnesses who have supported the prosecution case. They have also examined Waqar Ahmed, Muhammad Hanif Siddiqui, Muhammad Rashid alias Ghandi and Shamsuddin as eye-witnesses but they have not supported the prosecution case and, therefore, they were declared hostile. Beside this, the prosecution has also examined formal witnesses Syed Zafar (Photographer), Dr. Abdul Hadi Khan Sherwani, Syed Ali Abbas, the Investigating Officer and S.H.O. Muhammad Mukhtar. In their defence, the respondents have examined Dr. Abdul Hadi Khan, Muhammad Saeed, S.M. Mehdi and Danial.
6. The points that came for determination before the Additional Sessions Judge are as under:- "(1)Whether Muzaffar Uddin Khan alias Irshad died unnatural death due to injuries?
(2)Whether all the accused of this case formed unlawful assembly and they were armed with deadly weapons with intent to commit murder of Irshad and whether they committed murder of Irshad by causing him knife injuries as well as with slaps, fists and kicks?
(3)Whether accused Syed Ali Shamshad washed surface of the Wardat after commission of above crime and thereby committed an act with intent to screen the other offenders or murder from legal punishment?
(4)What offence if any has been committed by the accused?"
7. Point No.1 related to the death of Irshad and whether it was unnatural and due to injuries. This point was answered by the learned Additional Sessions Judge in the affirmative. We also do not find any reason to differ and hence agree with this finding. The most important witness on this point is Dr. Abdul Hadi who had conducted autopsy on the dead body of the deceased. It is deposed by the said doctor that on 8-9-1975 he was Police Surgeon in Civil Hospital, Karachi when the dead body of Muzaffar Uddin alias Irshad was brought to him for post-mortem examination. He conducted the post-mortem examination at 12-45 p.m. And concluded it at 1-50 p.m. On the same day. On external and internal examination of the deceased, the `doctor found the following injuries on his person.
External Examination:- (1)Incised wound left side lower part front of chest 1 --" from the midline -- " above the left coastal margin, measuring 1" x -- " x cavity deep.
(2)Incised wound right side front of abdomen 1" from the midline, 1" above the level of umblicus measuring -- " x -- " x cavity deep, with omentun coming out.
(3)Incised abrasion left themar eminece 1/8" x 1/8".
(4)Contusion back of left hand in an area of 1" x 1"
(5)Contusion left side of chest outer part in line of interior axillary fold 2" outside and below the level of left nipple measuring -- x --.
(6)Contused abrasion, bridge of nose -- " x -- ---.
(7)Contusion left side of nose -- x 1/8".
Enternal Examination: A.Head Scalp normal, skull bones normal, Brain and membrane normal.
B.Chest.
Both the lungs are normal and pale. Heart normal in size and shape. Both sides empty. Coronories patent.
C.Abdomen.
Abdomenal cavity contained blood and digested food Stomach showed incised injury on its interior and posterior walls through which partially digested food matter was oozing out. Stomach contained about 2 ounces of partially digested food. No typical smelling, Mucas membrane uniformally congested. Small intestines contained Yellowish chyle. Large intestines contained little urine, Pancreas shows small nick on interior surface. Liver was injured as described under the dissection of Injury No. 1 otherwise normal and pale. Spleen normal and pale Left kidney normal and pale. Right kidney showed ecchymosis in perinephric tissue.
The doctor prepared post-mortem report which is Exh.16 on record and it is in his own handwriting and bears his signature.
8. On the dissection of Injury No. 1, the weapon of assault after cutting through the sixth costal cartilage passed through the dome of diaphrage and then causing a through and through incised injury near the boarder of left lobe of the liver and then caused incised injury through and through to the interior and posterior walls of the stomach and then passing through the omentum caused collection of blood over the pancreas. On the dissection of Injury No.2 the weapon of assault after passing through the muscle entered the abdominal cavity and reaching near the vertebral column caused an incised wound in the interior wall of the inferior venacave and acchymosis of mesentry and perinephrio tissues on the right side.
9. In the opinion of Police Surgeon Dr. Abdul Hadi Khan, External Injury No.2 with its internal damage in the abdominal cavity was individually and collectively sufficient to cause death of the deceased in the ordinary course of nature. The doctor has further given opinion that the death of Irshad was due to haemorrhage and shock as a result of homicidal injuries inflicted on the body of Irshad with sharp-edged weapon such as big knife or any other similar weapon.
10. The unnatural death of Irshad due to injuries has not been challenged or rebutted by the above- named accused and their defence counsel.
11. Coming to the other two points it may be mentioned that the prosecution led (1) ocular evidence of witnesses whose name we have already given above, (2) evidence as to motive given by the same witnesses particularly Rashid alias Ghandi and (3) circumstantial evidence consisting of recoveries of blood-stained clothes from the persons of the accused, presence of injuries on their persons and recovery of two --knives on the pointation of Fazal Ali which have been opined by the Chemical Examiner to be strained with human blood.
12. Mr. Abdul Ghafoor Mangi, learned A.A.-G. Addressed us on behalf of the prosecution and tried to convince us that the evidence on record which has been enumerated above could have been made a basis of conviction if the learned Additional Sessions Judge would not have taken a liberal attitude in extending benefit of doubt to the accused. He submitted that the occurrence had taken place at a public place. The deceased, the witnesses and the accused resided in the same locality.
Therefore, there was no occasion for mistaken identity. The names of the respondents as well as the witnesses were mentioned in the F.I.R which was promptly lodged. The inconsistencies in the evidence of the witnesses who have supported the prosecution case have been assigned by the learned A.A.-G. To the delay in recording of their evidence which is about 7 years. He has also assigned the reason of hostility of remaining eye-witnesses who have not supported the prosecution case to be the fact that they had succumbed to the pressure of the respondents due to the long delay in recording of their evidence.
13. We have also heard Mr. S. Sibghatullah Hamid, the private counsel for the complainant who vehemently opposed this acquittal appeal. On behalf of the respondents Mr. Azizullah K. Shaikh has been heard at length.
14. Before we embark upon the appreciation of submissions made by the counsels of the parties it will be appropriate to have a bird's eye-view of the law as to acquittal appeals, laid down by the Superior Courts. In this connection, first of all, we would place reliance on the leading case as to the considerations which should be kept in view by Courts while deciding the acquittal appeals.
It is the one reported in AIR 1934 P C 227. It has been held as under:-- "Sections 41.7, 418 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that 'power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusion upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
The Supreme Court of Pakistan had also, while deciding an acquittal appeal reiterated the same principle in a ruling reported in PLD 1964 SC 422 which may be reproduced as under:- "In the case of reversal of an acquittal by the trial Judge, supported unanimously by the assessors it is desirable that the Court should bear in mind that the full facts and circumstances of a case are laid open before a trial Court and thereby come within the comprehension of that Court including a jury of assessors, thoroughly and completely that is ever possible the basis of a written record canvassed to advantage disadvantage by learned counsel in a Court of Appeal. The trial Court being close to the scene of the occurrence and familiar with the ways and practices of the people involved, enjoys a marked advantage in the formation of a complete and balanced picture of the incident or incidents which go into the making tea the prosecution case as presented by witnesses of the locality It also enjoys another advantage of a priceless character for such appreciation namely that the witnesses do not merely appear before it to give that evidence, which through repetition before, the Police authorities and the committing Court they may be thought to be well schooled in, but also that which they give --under the probing stresses of cross-examination.
16. A Division Bench of this Court, while dealing with an acquittal appeal, referred to the above principle in a ruling reported in 1579 PCr.LJ 891. It will be useful to reproduce the same:- "However, while dealing with the acquittal appeals the High Court has to keep the following factors in view namely that the trial Court had an opportunity of seeing the witnesses and that its opinion as to the credibility of witnesses deserves to be kept into consideration and also the slowness of the High Court in displacing findings of innocence. The High Court has also to be cautious that while the accused has obtained the benefits of doubt, the presumption of innocence in his favour is also strengthened and not weakened by the acquittal.
17. It would therefore, appear that in deciding an acquittal appeal which rests wholly on direct evidence of witnesses, importance must be given, to the views of the trial Judge as to the credibility of witnesses, to the presumption of innocence in favour of the accused and to the rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person. The High Court must be slow at disturbing a finding of fact arrived at by a Court which had the advantage of watching the demeanour of witnesses particularly in an appeal against an acquittal.
Where a Judge has formulated grounds of doubt which are not preverse or wholly illogical or unreasonable there is a clear risk of departure from the principles enumerated above in reversing his findings. It is a maxim of English law that it is better that ten guilty men should escape than one innocent man should suffer.
18. The mast important witness in this case, according to the prosecution, is complainant Habibur Rehman's. He is admittedly the cousin of the deceased. He has stated that on hearing commotion.
Which attracted and made him to go out of his house, he saw the respondents named above assaulting his brother-in-law Irshad in front of Mumtaz Provision Store. He saw Mustafa Abbas and Fazal Ali inflicting knife injuries. P.Ws. Waqar Ahmed Sabbir, Hussain, Shamsuddin, and Hanif were also present at the scene of offence. On seeing the complainant retching there, the respondents made good their escape. The complainant went there and found deceased lying on the ground. He enquired from him as to the incident. The deceased informed him that on the same day early in the morning he had gone to the mosque for offering prayers and found that the loud speaker of the mosque was not in order. P.W. Rashid alias Chandi was asked by him to repair the same, but he could not repair it. On this Irshad rebuked Rashid alias Ghandi. In the meanwhile Mustafa Abbas and Iqtedar Hussain, came there and started intervening. Deceased Irshad told them not to interfere and on their refusal he gave a slap to Mustafa Abbas. Thereafter, both Mustafa Abbas and Iqtedar Hussain went away after threatening Irshad. Irshad informed that the respondents had thus implemented their threats. Irshad further stated that Fazal Ali, and Mustafa Abbas inflicted knife injuries on his belly. Complainant, Habibur Rehman's has further stated that he then removed Irshad in Suzuki taxi to Drigh Colony Police Station where he found S.I. Ali Abbas on duty. The complainant gave all the facts to him. The condition of Irshad was precarious. S.I. Ali Abbas asked the complainant to remove Irshad to the hospital immediately and gave a police constable to assist him. Consequently complainant Habibur Rehman's transported injured Irshad to Hospital in the same Suzuki but the deceased succumbed to his injuries on way to the hospital near Karsaz.
The complainant reached the hospital where he found S.H.O. Mukhtar Ahmed as well as B.I. Ali Abbas. His F.I.R. Was taken down on plain paper at the hospital as shown above The complainant then went to the Police Station and leached there at 7-45 a.m. Both the Investigating Officers were available at the Police Station. They recorded his F.I.R, in 154, Cr.P.C. Book at 9-20 a.m. The police called him and on his pointation inspected the scene of offence. Then there is the Cross- examination of the complainant which is of course very lengthy running in 19 typed pages. The learned Additional Sessions Judge has discussed the main points of the evidence particularly in cross---examination and has pointed out that the evidence of complainant in the Court is inconsistent with what he has stated in the F.I.R. The complainant is not definite whether he went first to the hospital or to the police station and has given different versions which contradict each other. The learned Additional Sessions Judge has stated that the complainant has not mentioned in his F.I.R. Or evidence if the members of his family accompanied him while he had removed Irshad to the hospital but at later stage he has admitted this fact. The complainant is admittedly sister's husband of the deceased and interested witness. He further pointed out that the complainant had stated in the F.I.R.F that he immediately deputed P.W. Waqar Ahmed to arrange for a vehicle, but he has not stated that Waqar Ahmed did not go for arranging vehicle. On the other hand he has states' that Waqar Ahmed was present when the deceased gave the facts of the incident to him and other witnesses which shows that Waqar Ahmed had not left to bring the vehicle. The complainant has stated that when the accused persons saw the complainant coming, they ran away which denotes that the complainant might have seen them running away. Thus, it would appear that the learned Additional Sessions Judge has disbelieved the evidence of complainant Habibur Rehman's and has given reasons for doing so some of which are convincing.
19. The next witness who has supported the prosecution version is Shabbir Hussain. He has stated that on 8-9-1975 he was going to his duty. When he reached in front of Mumtaz Provision Store he found the above-named five accused /respondents beating Irshad. Fazal Ali and Mustafa Abbas had knives in their hands. Mazhar Ali was holding Irshad from his hair while Mustafa Abbas was holding him from his chest. Accused Iqtedar Hussain had iron hand clip in his hand and was beating the deceased with it. Respondent Fazal Ali gave slap to Irshad and he stabbed Irshad with his knife. Mustifa also stabbed Irshad. P.W. Waqar intervened and pulled Muhammad Mustafa. At that time Hanif alongwith Shamsuddin and complainant Habibur Rehman's came to the place of incident and all the respondents ran away. P.W. Shabbir Hussain has also stated that the police secured blood-stained earth from the scene of offence which was mixed with water. He has further stated that police arrested Muhammad Mustafa and secured from him blood-stained clothes. The learned Additional Sessions Judge took into consideration the evidence of this witness as well. He pointed out that the witness was admittedly married to the sister of the complainant Habibur Rehman's. His evidence was recorded by police after 10-12 hours of the incident. He has therefore, decided not to rely on the same.
20. The remaining eye-witnesses of the incident i.e. Waqar Ahmed, Hanif and Shamsuddin have not supported the prosecution case and have, therefore, been declared hostile by the Public Prosecutor. The learned A.A.-G. As well, as the private counsel for the complainant argued before us that although these three witnesses had not supported the prosecution case and were declared hostile by the Prosecutor, yet they have admitted in their evidence that the respondents were present at the scene of offence at the time of incident. Hence this statement made by these witnesses lent corroboration to the evidence of above two eye-witnesses namely complainant Habibur Rehman's and P.W. Shabbir Hussain. With this argument we are unable to agree.
Admittedly the respondents resided in the same locality. It has been admitted by them that two of them happened to pass from there and had intervened and tried to separate deceased Irshad and Rashid alias Ghandi who were fighting among themselves. This fight has been admitted by the prosecution itself and it has also been admitted that the respondents had tried to intervene and thereupon were slapped by Irshad. The conduct of Irshad in rebuking Rashid alias Chandi when he could not repair the loud speaker of the mosque and then in slapping one of the respondents who tried to intervene casts adverse reflection on his temperament and conduct. The presence of some of the respondents at the scene of offence is not a disputed fact and its mention by those witnesses who had turned hostile cannot be treated in any way as a piece of evidence which could go against the respondents or corroborate the evidence of Habibur Rehman's and P.W. Shabbir Pussain.
21. Then there is evidence of P.W. Jamil Khan which is to the effect that when he reached scene of offence, he saw the respondent Shamshad washing blood on the ground. Thereafter, the police came to the scene of offence and secured the blood-stained earth mixed with water. He is also Mashir of the securing of blood-stained clothes from the persons of the respondents. He is, therefore, not an eye-witness on the point of murder itself but an eye-witness of the offence under section 201, P.P.C. Alleged to have been committed by Shamshid which is quite independent and his evidence cannot afford corroboration to what had been deposed regarding murder as it is regarding the washing of the blood. His evidence on the washing of the blood is also a solitary piece of evidence which is neither supported by any evidence nor it can support the evidence of murder.
22. The next witness is Muhammad Rashid alias Ghandi. His evidence is only on the point of motive.
He offered Salam in the Masjide Qaiser but the mike was out of order. He was asked by Irshad to repair the same. On his inability to repair the mike, Irshad rebuked him. Then he came out from the mosque where they were chit-chatting with other persons. In the meanwhile Iqtedar and Mustafa Abbas came there and talked with Irshad. Irshad told him as to why they had come there and gave slap to Mustafa Abbas. Mustafa Abbas went away to his house after threatening that he would take revenge. P.W. Muhammad Rashid alias Ghandi has not given any further evidence and has stated that thereafter he went away his house and at 9-30 p.m. Wren he returned to his house from his duty he came to know from his mother that Irshad had been done to death. The evidence of this witness is inconsistent. It has been pointed out by the learned Additional Sessions Judge that complainant has stated that Irshad had slapped Mustafa Abbas. This witness deposed that Mustafa Abbas saved himself from the slap. Muhammad Rashid alias Ghandi has stated that Irshad had slapped him also but in his 161, Cr.P.C. Statement he has nor stated, so. Similarly in his deposition he has stated that Mustafa Abbas came there and asked Irshad as to why he had beaten Muhammad Rashid alias Ghandi but this fact is also not mentioned in his 161, Cr.P.C.
Statement. Apart from that the motive thus given is riot convincing and even if it is believed it was not sufficient to invoke the respondents to commit murder of Irshad.
23. The learned trial Judge while concluding the discussion of the prosecution evidence has recapitulated all his reasons in 26 points. It will be useful to reproduce the same. These are as under:-- (1)The prosecution case as revealed in the F.I.R. Does not tally with the evidence produced in this Court.
(2)According to complainant Habibur Rehman's P.Ws. Waqar Ahmed, Shabbir Hussain. Muhammad Hanif Siddiq and Shamshaduddin were already present at scene of offence but none of these witnesses have deposed if complainant Habibur Rehman's came at the place of occurrence at the time of incident.
(3)It has not been proved by the prosecution as to who brought the vehicle in which Irshad was taken to the hospital?
(4)P.W. Waqar has denied having brought a vehicle and, therefore, the complainant's evidence has been falsified.
(5)The complainant is not definite if he went firstly to the hospital or to the police station and he has given different versions which are so contradictory to each other that one cannot place reliance on any of his versions.
(6)The complainant has not mentioned in his F.I.R. Or evidence if the members of his family also accompanied him in the Suzuki vehicle while taking Irshad to the hospital but at later stage of the evidence, he bias admitted this fact.
(7)P.W. Waqar has been declared hostile witness who has denied the evidence as offered by the complainant.
(8)Similarly, second eye-witness Muhammad Hanif has been declared hostile.
(9)No P.W. Has supported the prosecution version about the motive of the accused as offered by the complainant if there was any dispute between Irshad and accused over the Loud Speaker and if the accused had threatened to kill him.
(10)Similarly the version of Jamil about accused Ali Shamshad washing the blood at the place of occurrence has not been supported by any other witnesses.
(11)P.W. Shabbir Hussain, is admittedly relation of the complainant.
(12)The version of Habibur Rehman's and Shabbir Hussain are absolutely on different footing and they contain highly contradictory statements and. Therefore, no reliance can be placed on the same.
(13)Accused Fazal Ali and Mazhar Ali have successfully proved their plea of alibi through the defence witnesses and, therefore, they both were not present at the place of incident at that time when said murder took place.
(14)The plea of alibi of the above-named accused has been believed and; therefore, inference in respect of other accused can also be drawn that they have been falsely implicated.
(15)P.W. Shabbir Hussain, has stated that he did not remember if at the time of inspection of place of incident, P.W. Jamil was present there. If this is so, the evidence of Jamil in respect of site inspection has been washed away.
(16)Eye-witnesses Waqar Ahmed and Hanif have been declared hostile and they have stated on oath that the), did not see the accused causing injuries to Irshad.
(17)Eye-witnesses Shamsuddin has stated that he did not see anything in the hands of accused persons. This witness did not support the prosecution case; hence he was declared hostile witness.
(18)The evidence of complainant Habibur Rehman's gets no support from other three (3) eye- witnesses viz. Viqar Ahmed, Hanif Siddiqui and Shamsuddin.
(19)Evidence of complainant Habibur Rehman's and P.W. Shabbir Hussain, is full with extreme contradictions which cannot aspire confidence as a result of which their evidence is not free from highest decree of doubt and suspicion.
(20)Evidence of Abdul Rashid alias Gandhi and Jamil is only on the points of motive and circumstantial evidence but their testimony has not been corroborated by anyone else apart from the, fact that it is full with contradictions and material errors as discussed in the foregoing paras.
(21)The point whether Irshad was first taken to the hospital or to the police station, has still remained unsolved by the prosecution and this fact gives rise to clear shadow to degree of doubt.
(22)No statement of Irshad was put into writing either by police or the Magistrate although he was not unconscious till he died.
(23)There is no evidence on record if Irshad was at all going for job and, therefore, there was no necessity for him to leave the house so early particularly when he was allegedly threatened by Mustafa Abbas after going out from the mosque.
(24)Many people had been collected at the place of incident but prosecution has failed to collect any independent reliable witness.
(25)Evidence of P.Ws. Waqar, Hanif Siddiqui and Shamshaduddin has falsified the evidence of Habibur Rehman's and apart from his own material contradictions and hostile evidence.
(26)Evidence of P.W. Shabbir who is closely related to the complainant and the deceased was recorded by police after 10, 12 hours and can be challenged as held in PLD 1960 SC 223 and 1974 P Cr. L J 391 and 400.
24. We are of the view that most of criticism of prosecution evidence contained in the above main points is satisfactory and convincing. It was argued by A.A.-G. Mr. Abdul Ghafoor Manghi that learned trial Court was not justified in accepting the plea of alibi of the respondents. Even if we accept this contention and exclude the evidence of the alibi then too it would not make any difference. Fate of a criminal case does not depend on the weakness of the defence evidence, and it does not decide the fate of an accused. The prosecution case has to stand on its own legs.
25. It would, therefore, appear that the learned trial Court has chosen for certain reasons not to base conviction on the oral evidence of eye-witnesses or supporting witnesses. We may or may not agree with the reasons given by the learned Additional Sessions Judge which led him to believe that the witnesses are untrustworthy and unreliable but we have to keep in mind that witnesses can and may easily perjure, and therefore, we would be slow in accepting the oral evidence of interested witnesses particularly when some of them have given conflicting and inconsistent evidence while some have been declared hostile. Regarding ocular evidence of closely related witnesses it has been held by the superior Courts of our country that their evidence can be relied upon only if it is corroborated by strong circumstantial evidence such as recovery of blood-stained hatchet and clothes, extra-judicial confession etc. Reference in this connection may be made to Raja v. State 1969 SCMR 66. We would, therefore, revert to the circumstantial evidence. Initially it is in the shape of presence of injuries on and recovery of blood-stained clothes from the persons of respondents Mustafa Abbas and Muhammad Abbas. Then there is the evidence of recovery of two knives at the pointation of accused Fazal Ali which were sent to Chemical Examiner who opined the same to be stained with human blood. The learned Additional Sessions Judge has failed to discuss both these pieces of circumstantial evidence and has omitted to give his opinion about the same.
We, therefore, ourselves examined both these pieces of the circumstantial evidence. So far as the presence of blood-stained clothes on the persons of Mustafa Abbas and Muhammad Mustafa is concerned it is admitted that they had injuries on their persons rind, therefore, the blood on their clothes will be presumed to be the Blood of these respondents themselves. The Chemical Analyser has not mentioned the group of the blood and, therefore, it is nut possible to decide that the blood which was on their clothes was not of these respondents but of the deceased. Hence the presumption goes in favour of the respondents. Regarding the injuries on the persons of both accused it is sufficient to say that nowhere has it been claimed key the complainant or anyone of the prosecution witnesses that they or anyone of them or the respondents themselves had caused injuries to Mustafa Abbas and Muhammad Mustafa or that these injures were sustained by them during the course of this incident hence neither the injuries on their persons nor recovery of blood- stained clothes can be treated as a piece of circumstantial evidence incriminating anyone of these respondents. So far as the evidence of recovery of knives is concerted it may be pointed out that the Investigating Officer has neither stated in the memo. Of seizure nor in his evidence that anyone of these knives was stained with blood. No explanation has been offered by the Investigating Officer as to why he sent the knives to the Chemical Analyser in spite of the fact that no blood was found or them The knives were received by the Chemical Analyser after one year of the incident and the report was given after another one year. It is, therefore, quite clear that the blood even if it was there on the knives would have disintegrated and could not have been detected after such long lapse of time. We are also unable to understand as to how the prosecution has saddled accused Mustafa Abbas with one of these knives when he had not pointed out the same. Finally the presence of blood stained earth at the scene of offence, which was secured by the Investigating Officer alongwith the water with which it was mixed. The presence of blood at the scene of offence can only show that somebody had bled at the place and would be circumstance to corroborate the fact that the deceased had bled at that place, which is not denied even by the respondents neither of these three pieces of circumstantial evidence can be treated as corroborative of evidence of complainant Habibur Rehman's and P.W. Shabbir Hussain, or of the oral evidence of any other witness referred to above. The corroboration required in such cases should be strong and sufficient to establish individual part of every accused. A general evidence of presence of all the accused at the scene of offence is not sufficient. Similarly no doubt motive is not necessary to be proved in murder cases because in every day life we see that motiveless murders do occur owing to mad or reckless acts of inhuman nature but it may be stated that where a motive is alleged by the prosecution which is found to be false or insufficient it becomes all the more necessary to scrutinise the evidence that has been led on that point. The Hon'ble Judges of Supreme Court in PLD 1969 SC 127 have held as follows:--- "Where, therefore, the alleged motive was found to be absent being untrue it was held that the Courts should have been very; much on their guard to accept the story of the prosecution of which the motive was an important constituent any. Which depended for its acceptance on the statement of a single witness who supported that story including the motive."
"The witness has to be taken on his own words. If he has made a false concession in favour of the accused persons and has compromised his integrity, his veracity is evidently damaged. If he is capable of making a false statement for one party he is equally capable of making it for the sake of the other party."
26. The contention of the learned A.A.-G. That the offence had taken place in broad daylight and; therefore, the prosecution witnesses should be believed irrespective of the fact whether their evidence is weak or strong is not acceptable to us. On the contrary' where it appears that large number of persons gathered at place of occurrence and the prosecution had an opportunity of producing uninterested witnesses yet they failed to produce a single disinterested witness in support of its case, no implicit reliance could be placed on the evidence of interested witnesses in the, absence of corroboration. Reliance in this connection was rightly placed by the respondents counsel in 1972 SCMR 144 where the prosecution version was that, large number of persons had gathered at the scene of offence but all the same prosecution failed to produce a single disinterested witness in support of its case. The Supreme Court held that no reliance can be placed on the interested eye-witnesses in the absence of corroboration. It was further held that the prosecution had failed to prove its case beyond reasonable doubt and acquittal of accused in circumstances was not interfered with. This case was also one of an appeal under section 417, Cr.P.C. Against acquittal of the respondents in a murder case.
The above are the reasons for which we had pronounced our short order dismissing this appeal filed against the acquittal of the respondents.