' NAZIR AHMAD BHATTI, J.-This appeal filed by Syed Azeern Shah appellant is directed against the judgment dated 23.8-1986 of the Sessions Judge, Quetta whereby the appellant has been convicted under section 302, P. P. C. For the murder of Mian Masood Ahmed and sentenced to death and a fine of Rs, 5,000 in default whereof to suffer R. I. For six months and a compensation of Rs, 5,000 to be paid to the heirs of the deceased. The learned trial Judge has also forwarded Murder Reference No, 4 of 1986. The judgment in the present appeal will also dispose of the said murder reference.
2. P. W. 13 Muhammad Sharif, Inspector Police, S. H. O. City Police Station, Quetta received information from the Civil Hospital Quetta on telephone on 7-6-1985 at 3-15 p. m. That a rickshaw driver Babar Michael (P. W. 2) had brought an injured person (Mian Masood Ahmed) to the hospital who had succumbed to his injuries. On receipt of this information P. W. 13 Muhammad Sharif, Inspector of Police reached Civil Hospital where he found the dead body of a young man aged about 22 years having four knife injuries on the left shoulder, 2 knife injuries on the front of body near the heart and two knife injuries on the back right side. P. W. 2 Babar Michael informed the Inspector that he was going on his rikshaw on the Masjid Road and on the crossing of Usman Jogezai Street the deceased stopped the rikshaw and asked to be taken to Shaldara. Babar Michael was taking the deceased towards the place pointed out by him but at Safeer Masjid Road Chowk the deceased fell in the rikshaw and then this witness came to know that he was injured. He then took the deceased to the hospital where he succumbed to his injuries. This information was recorded by P. W. 13 at 3-45 p. m. And Murasala was sent to P. S. City where. F. I. R. No, 92 of 1985 was recorded, on the said date. During investigation two persons deposed against the appellant who was arrested from his house on 8-6-1985 and was charged by the Sessions Judge for the murder of Mian Masood Ahmad to which he pleaded not guilty and claimed trial. The State produced 13 witnesses in proof of the prosecution case. The appellant is also alleged to have made a confession on 13-6-1985. The appellant was examined under section 342, Cr. P. C. And also appeared as a witness in his defence and had also produced four witnesses in defence.
3. P. W. 1 Dr. M. Gul Khan conducted post-mortem examination of dead body of Mian Masood Ahmad on 8-6-1985 at 9-00 a. m. He found the following stab wounds on the dead body:-
(1) Abrasion on the left elbow 2' x
(2) Stab wound on the back side of chest 1 f in length i" breadth and chest cavity deep.
(3) Stab wound below the Injury No, 2, 4" x j chest cavity deep.
(4) Stab wound on the left upper arm in front 1" x 4" muscle deep.
(5) Stab wound on the left upper arm 2" below the Injury No, 4, 4" x muscle deep.
(6) Stab wound on the left upper arm on the back side X 4" into muscle deep.
(7) Stab wound 3" x 4" x 4" below Injury No, 6.
(8) Stab wound front of chest left side near the nipple 3/4" x i" chest Cavity deep.
(9) Stab wound 2" below the Injury No, 8, 1" x 4" chest cavity deep. On internal examination the doctor found the following:- "Abdomen full of blood and majority of blood vessels were cut under Injury No, 2, the stomach was empty. Liver had a cut on right lateral side 4" in length. Bladder was empty, there was also tear in the right lung lower part and in the same way in the left lung lateral part, there was a cut in the heart about 4" in length, there was no other fracture of bone etc."
' According to the opinion of the doctor the cause of death was injury to the vital organs i. e. Heart, lungs, liver and excessive internal bleeding shock and death. The doctor was of the further opinion that the probable time between injury and death was about half- an hour. The doctor further stated in cross-examination that the external injuries which did not open into the body there must be bleeding outside them. P. W. 2 Babas Michael is the maker of the F. I. R. He has affirmed the contents of the F. I. R. And has further stated in cross-examination that when the boy had sat in his rikshaw he appeared to be all right. P. W. 6 Hussain Bakhsh Umrani E. A. C-I Quetta had held identification parade on 8-6-1985 at about 1-35 p. m. Where P. W.
4. Zainuddin is alleged to have identified the appellant. P, W. 7 Mir Sher Dil Khan E. A. Quetta recorded the confession, Exh. P/H of the appellant. The appellant has also alleged to have taken the police party to a place wherefrom the knife, Exh. P/1, alleged weapon of offence, was recovered by P. W. 13 Muhammad Sharif at the pointation of the appellant in the presence of P. W. 9 Ch. Ishfaq Ahmed. P. W. 11 Nazir Ahmad, S. I. P. Recorded the F. I. R. P. W. 12 Muhammad Azam, Patwari had prepared the site plan of the place of occurrence on 15-6-1985 at the instance of Shahnawaz, Sub- Inspector Police. P. W. 10 Raja Muhammad Irshad, Sub-Inspector Police accompanied P. W. 13 Ch. Muhammad Sharif to the hospital. P. W. 13 Muhammad Sharif, Inspector Police had recorded the statement of P. W. 2 Babar Michael, prepared the injury sheet and inquest report and sent the dead body of Mian Masood Ahmad for post-mortem, investigated the case, recovered the knife at the instance of the appellant, held identification parade of the appellant and produced him on 13-6- 1985 before the Magistrate for recording his confession.
4. There are two eye-witnesses of the occurrence, P. W. 4 Zainuddin and P. V. 5 Muhammad Rashid Malik. P. W. 4 Zainuddin has stated that in the month of last Ramazan at Juma prayer time, he was sitting . In the cabin of the hotel of his uncle Muhammad Hussain at Masjid Road, Quetta. One person came and phrased one cigarette from him. He heard noise that there was a fight. A crowd had collected there and hence he did not see the fight himself and he did not come to know as to who had fought. After the incident the person who had purchased cigarette from his cabin was seen by him going slowly by the side of his cabin and the appellant appeared to be the same person who had purchased cigarette from him. Police had also held identification parade and he picked out the appellant but his photograph had been shown to him previously in the police station. At that stage at the request of the District Attorney this witness was declared hostile and he was cross-examined by the District Attorney. In cross-examination this witness stated that he did not see the injured going from there and he also did not see the knife in the hand of the person who was going by the side of the cabin after the incident. He further admitted in cross-examination that Ch. Sharif had asked him as to what was his statement and he had told him that he had forgotten it and then the statement was explained to him. P. W. 5 Muhammad Rashid Malik had stated that on 7-6-1985 he had gone to Masjid-i-Tuba for offering Juma prayers.. After the prayer he was going on Masjid Road and When he was some distance away from Chowk of Usman Jogezai Street he saw one person giving knife blows to another person. The appellant was the person who was giving knife blows to Mian Masood Ahmad. Both of them were known to him from before. The appellant gave 3 or 4 knife blows to Mian Masood Ahmad in his presence, then they separated from each other. He went towards deceased and inquired about his condition who replied that he was all right. Masood stopped one rikshaw and sat in it and went to Masjid Road. But this witness did not inform any one after the incident as he thought that Mian Masood was all right, but at 9/10 p. m. He came to know about the death of Mian Masood Ahmad. Then he first went to his house and from there he went to the hospital and told the father and brother of the deceased and the police that he had seen the occurrence. In cross-examination he has admitted that Mian Hassan, brother of the deceased, was employed in the same office. He had seen the occurrence from a.
Distance of 25 to 30 feet, He had not stated before the police that he had inquired from the deceased about his condition. The motive for the offence as alleged by the prosecution is that the deceased was friend of the appellant but had also developed friendship with another person and had started ignoring the appellant.
5. The learned Sessions Judge has discarded the identification parade but has believed the ocular evidence, the confession of the appellant, the factum of recovery of the alleged weapon of offence and the motive.
6. In so far as the ocular evidence is concerned, the State had to declare one of their witnesses as being hostile. He is P. W. 4 Zainuddin dated about 11 years. He had clearly stated in his evidence before the trial Court that although he had heard noise that there was a fight but a crowd had collected there and hence he did not himself see the fight and he also did not come to know as to who had fought. After the incident he only saw the appellant going slowly by the side of his cabin.
He also did not see the injured going from there. He also did not see knife in the hand of the appellant after the incident. The testimony of this witness was not worthy of any credit and the declaration of his hostility further marred the evidentiary value of his deposition. Even otherwise his testimony does not prove any accusation against the appellant. In so far as P. W. 5 Muhammad Rashid Malik is concerned, it has to be borne in mind that he is a close neighbour of the deceased.
On the day of occurrence he was passing through the Masjid Road after offering Juma prayers and by chance he saw the occurrence. However, his conduct With regard to the alleged fight and in so far as the deceased was concerned is most questionable. He has stated that he saw the. Appellant and the deceased fighting with each other. He also saw the appellant allegedly giving knife blows to the deceased. He also saw the deceased going away in a rikshaw. But he did not care to inform the relatives of the deceased about the occurrence although he had immediately thereafter gone to his house. He also did not try to find out from the house of the deceased if he had safely reached his house. Although this witness is not related to the deceased but he is a close neighbour and if he had seen the occurrence then he would have at least tried to make sure that the deceased had reached his house safe and sound. Although he had immediately gone to his house' after the incident but he kept quiet for 5/6 hours and did not inform any of the relatives of the deceased about the occurrence. There is one more added circumstance of interest of this witness with the family of the deceased and the same is that he is employed in the same office where the brother of the deceased is employed.
7. The evidentiary value of the deposition of these two eye-witnesses further becomes doubtful for the reason that the place from where they saw the occurrence is not mentioned in the site plan.
Both these witnesses are not mentioned in the F. I. R. They subsequently came forward to depose that they had seen the occurrence. In such a circumstance it had become all the more important for the Investigating Officer to mention in the site plan the places from where- they had seen the occurrence. Not only that the cabin from where P. W. 4 Zainuddin is alleged to have seen the occurrence has also not been shown in the site plan. We have considered this aspect of the matter very anxiously and we have come to the irresistible conclusion that both these witnesses were neither present near the place of occurrence at the relevant time nor they had seen the same. For the aforesaid reasons we would discard the ocular evidence recorded in the case.
8. It is alleged that the knife, Exh. P/1, was disclosed to be the alleged weapon of offence by the appellant himself on 8-6-1985 and he took the police party to the place where he had thrown it after the incident. This knife allegedly used in the commission of the offence was found on the roof of a shop shown at point (y) in the plan, Exh. P/L. This place is situated on the Masjid Road. It has been stated by P. W. 13, who had accompanied the appellant to the place from where this knife was recovered that they had climbed the roof of the said shop through stairs installed in the house of Qazi Dost Muhammad which is adjacent to the shop. However, the two witnesses of this recovery are Abdul Majid who was abandoned and later produced as D. W. 4,and Ch. Ishfaq Ahmed P. W.
9. It shall he seen that one of the witnesses of the recovery memo. Was abandoned and the other, P. W. 9 Ch. Ishfaq Ahmed, is not a resident of the area from where the knife was allegedly recovered. This witness is also a neighbour of the deceased and their houses are separated by a school only. He was friend of the deceased. At the relevant time he was passing through Fatima Jinnah Road on 8-6-1985 when he Was called by P. W. 13 to witness the recovery. It shall be seen that P. W. 9 Ch. Ishfaq Ahmad was not only a friend and neighbour of the deceased but also was a chance witness. The most appropriate and important witness of this recovery could be Qazi Dost Muhammad from whose house the police party had climbed the roof through the stairs and had allegedly recovered the knife but strangely two passersby were made the witnesses of the recovery out of whom one was a friend and neighbour of the deceased and the other a friend of the former whereas both were not residents of that area. It is one denied that independent witnesses of the locality were available at that relevant time but none of them was made a witness of the recovery and instead two chance witnesses and friends inter se and one being friend and neighbour of the deceased were made witnesses of this recovery. It has also not been brought on record whether the place from where the recovery was made is contiguous to the place of incident or is far away therefrom. The aforesaid reasons would make recovery of the alleged weapon of offence highly doubtful and it would not be safe to rely upon it as a factor for recording conviction of the appellant.
9. To us the place of occurrence also appears to be doubtful. The doctor has stated that all the external injuries received by the deceased must be bleeding. It has also come in the evidence of P.
W. 10 Raja Muhammad Irshad, Sub-Inspector that there was bleeding from the wounds of the deceased when they saw the deceased in the hospital. However, not a drop of blood was found at the alleged place from where the deceased was picked up by P. W. 2 Babar Michael or which has been designated as the place of fight by the two eye-witnesses. Not only that no traces of any scuffle were found on the ground as well. What has come in evidence is that ,13. W. 2 Babar Michael picked up the deceased from a place in Usniaii Jogezai Street, P. W. 4 Zainuddin saw some fighting taking place opposite to his cabin and P. W. 5 saw the fight taking place at the Chowk of Usman Jogezai Street and Masjid Road while he was still away from that place. No definite evidence has come on the record to prove beyond any doubt that the place which has allegedly been shown as the place of occurrence is the actual place of occurrence. This circumstance further creates a doubt about the veracity of the case of the prosecution.
10. The appellant was arrested on 8-6.1985 and it has come in evidence of P. W. 13 Muhammad Sharif that on the same day he had confessed his guilt and had also led the police party to the place from where the alleged weapon of offence was recovered. It is clearly indicated from this evidence that the appellant had made a confession of his guilt on the same day when he was arrested. However, he was produced before the magistrate for the purpose of recording his confession five days thereafter. The reason for this delay as explained by P. W. 13 Muhammad Sharif was that he was busy with other works in the meantime. This explanation to justify delay in recording the confession after five days does not appeal to reason. It is quite possible that in the meantime the appellant could have resiled from the confession. What was the guarantee that the appellant would stick to his confessional statement for five days. If the appellant had made the confession the very first day of his arrest then certainly P. W. 13 would have taken him on the same day to the magistrate for recording the same. The delay of five days clearly indicates that the appellant had not made a confession and it was either extracted from him or he was coerced into making the same or some inducement was offered to him for making the confession. The evidentiary value of the confession is further made doubtful by the circumstances that it was not explained to the appellant that he would not be handed over back to the police whether he made the confession or not. In this respect Question No, 10 on the form of the confessional statement is worth perusal. This question is not clear in this respect. Moreover, the appellant retracted from the confession. The retraction and the delay in recording the confession make it highly doubtful. We are, therefore, unable to take into consideration the confessional statement of the accused as its evidentiary value is next to zero.
11. In so far as ,the motive is concerned although it has been alleged but it has not been proved by strong evidence. Even otherwise the existence of a motive is no proof of the commission of an offence when the offence has not been proved against an accused beyond any doubt. The existence of motive in this case would also not help the prosecution in proving the guilt of the appellant. In his statement recorded under section 342, Cr. P. C the appellant denied the commission of the offence, the recovery of the knife at his instance and the making of the confession. Although he admitted that the deceased and he used to visit each other of and on but 'simple acquaintance will not prove the guilt of the appellant.
11. For the aforesaid reasons we will accept this appeal, set aside the conviction and sentence of the appellant and would acquit him of the offence with which he has been charged. He shall be set at liberty forthwith if not required in any other case. The Murder Reference No, 4 sent up by the Sessions Judge, Quetta is answered in the negative.
12. By our short order of even date we had accepted the appeal and the aforesaid are the reasons therefor.