' QAISER AHMED HAMIDI, J.-- Appellant Abdul Aziz alias Teny was tried by the 1st Additional Sessions Judge, Hyderabad for the offence under section 302, P.P.C., for having committed the murder of Muhammad Yaqoob, brother of his wife Mst. Khairunnisa, by means of a knife. He was, however, convicted for the offence under section 304-11, P.P.C. And sentenced to suffer R.I. For seven years and to pay a fine of Rs,5,000 or in default to suffer R.I. For six months. Rs,3,000 out of fine, if recovered, were ordered to be paid to the legal heirs of deceased Muhammad Yaqub as compensation. The appellant has challenged his conviction and sentence recorded on 29-4-1986, by filing this appeal. Being dissatisfied with the quantum of sentence Nazar Muhammad, uncle of deceased Muhammad Yaqub, filed revision application under section 435/439, Cr.P.C. Seeking the enhancement of sentence awarded to the appellant. We propose to dispose of both appeal and criminal revision by this consolidated judgment.
2. At the conclusion of arguments we had, by a short order dated 12-1-1989, allowed the appeal and dismissed the criminal revision application. The reasons for such short order presently follow.
3. Mst. Khairunnisa, sister of deceased Muhammad Yaqub, was married to appellant Abdul Aziz. It is alleged that appellant did not behave properly with his wife, who was detained by her father due to maltreatment of her husband. She was, however, restored to the appellant only a few days prior to this incident. On 3-8-1983 at 5-30 p.m complainant Nazar Muhammad lodged F.I.R. At S.I.T.E. Police Station alleging therein that at about 4 p.m. When he had returned to his house after selling digestive powder (Chooran), he heard commotion in the Mohallah and came out of his house. He noticed appellant Abdul Aziz fighting with deceased Muhammad Yaqub near the shop of Siddique barber. The appellant, who was armed with a knife, then stabbed deceased. Muhammad Yaqub on his right thigh, who fell down. Besides complainant Nazar Muhammad the incident was witnessed by Amiruddin and Shamsuddin, who were also attracted by the cries. The appellant then decamped. There was profuse bleeding from the injuries sustained by Muhammad Yaqub, who died on the spot. It is the case of the prosecution that appellant Abdul Aziz committed murder of his brother-in-law Muhammad Yaqub on account of dispute over the maltreatment of Mst.
Khairunnisa.
4. Shah Nawaz, S.H.O., S.I.T.E. Police Station recorded the F.I.R. He then proceeded to the scene of occurrence which was near Indus Glass Factory, Hyderabad. The dead body of Muhammad Yaqub was lying there. He prepared such Mashirnama in presence of Mashirs Bashir Ahmad and Noor Muhammad. The dead body of Muhammad Yaqub was then sent to Liaquat Medical College Hospital, Hyderabad, for post-mortem examination. The Police Officer then recorded the statements of Shamsuddin and Amiruddin, who were present on the spot. He then went to the house of appellant Abdul Aziz situated in Unit No,12, Shah Lateefabad, Hyderabad and arrested him in presence of same Mashirs. The appellant then produced his blood-stained clothes which were secured and sealed on the spot in the presence of same Mashirs. The appellant then led the Police Officer and Mashirs to drain (Nala) and produced the blood-stained knife which was lying there.
The knife was sealed on the spot and such memo. Was prepared. On 4-9-1983 the Investigating Officer recorded the statements of Mst. Khairunnisa and Qasim. The blood-stained articles were then sent to Chemical Examiner for report. After completing the investigation the appellant was sent up to stand trial for the offence under section 302, P.P.C.
5. At the trial the prosecution has examined complainant Nazar Muhammad (P.W.1), Amiruddin (P.W.2), Shamsuddin (P.W.3), Bashir Ahmad (P.W.4), Shah Nawaz S.H.O. (P.W.5), Dr. Anis-ul-Hassan (P.W.6), Ghazi Khan P.C. (P.W.7) and Ghulamullah Tapedar (P.W.8).
6. In his statement recorded under section 342, Cr.P.C., the appellant has disputed the case of the prosecution. According to him, he was produced before S.H.O., S.I.T.E. Police Station by Sardar Ali Baboo, Municipal Councilor and was then involved in this case. He has examined Sardar Ali Baboo (D.W.1) in his defence.
7. The fact that Muhammad Yaqub died an unnatural death is hardly open to any controversy. Dr. Anis-ul-Hassan (P.W.6), who has conducted the autopsy on the dead body of Muhammad Yaqub found the following injuries on his person:- (1)
An incised wound over palmer aspect of proximal phalynx of left little finger extending to the whole width of finger. The width of wound was 1 c.m., and it was bone deep. The bone of proximal phalynx was seen cut at its mid shaft.
(2) An incised wound over the palmer surface of left hand 6 c.m. x 1 c.m. x bone deep, 5 c.m. Below the root of 2nd, 3rd and 4th fingers.
(3)
An incised wound present over the dorsum surface of right thigh vertical in direction 20 c.m. In length, width and depth varies in the proximal and distal parts of the wound, over the distal 11 c.m.
Of the wound, the width is 5 c.m. And depth is bone deep, while over proximal 9 c.m. The width of the wound is 3 c.m. And depth is skin deep. In distal 11 c.m. Of the wound, muscles seen completely cut and the main blood vessel of the thigh also seen completely severed.
(4) An incised wound 13 c.m. In length over the back and chest and abdomen. Wound is shaped 2 c.m. In width and skin deep.
8. From external as well as internal examination of the dead body of Muhammad Yaqub, the Medical Officer is of the opinion that the cause of death was due to shock, resulting from injury No,3, which was individually sufficient to cause death in ordinary course of nature. The Medical Officer has further opined that death must have occurred within one hour of receiving injuries.
9. The case of the prosecution against the appellant consists of the following items of evidence:-
(i) Ocular testimony consisting of complainant Nazar Muhammad (P.W.1), Amiruddin (P.W.2), and Shamsuddin (P.W.3).
(ii) Recovery of blood-stained clothes from the house of appellant, which on examination by the Chemical Examiner were found to be stained with human blood.
(iii) Recovery of blood-stained knife at the instance of appellant, which on examination by the Chemical Examiner was found stained with human blood.
(iv) Motive.
10. The incident quite admittedly took place near Indus Glass Factory, Hyderabad at a distance of 39 feet from village Kalhore close to the shop of Siddique barber. Complainant Nazar Muhammad admittedly resides in village Lalu Machi. According to him, the scene of occurrence is situated at a distance of 100 paces from his house which fact is, however, belied by Ghulamullah Tapedar (P.W.8), who has stated in clear terms that village Lalu Machi is situated at a distance of about one mile from the place of Wardat. This fact further gets support from the sketch of Wardat prepared by Shah Nawaz S.H.O. (P.W.5) which is (Exh.19) on record. This sketch was prepared soon after the incident. The S.H.O., who had taken care to show all the important points in it, has deliberately omitted to make a mention of the house belonging to complainant, giving rise to an inference that the said house was not situated in the vicinity where the incident took place. The sketch of Wardat prepared by Ghulamullah Tapedar (P.W.8), which is on record (Exh.26) is also silent about it.
Admittedly the S.I.T.E. Police Station is situated at a distance of about one mile from the Wardat. The record also shows that complainant Nazar Muhammad had rushed to police station in an auto rickshaw soon after the incident. Shah Nawaz S.H.O. (P.W.5), however, states that the complainant had reached to him at 5-30 p.m. When his F.I.R. (Exh.7) was recorded. This delay has not been explained satisfactorily. This is a suspicious circumstance. In such cases there is always a strong temptation to conceal the truth and to exaggerate matters. This appears to have been done in this case.
11. Complainant Nazar Muhammad (P.W.1), who figures as an eye-witness is also contradicted by Dr. Anis-ul-Hassan (P.W.6). Nazar Muhammad (P.W.1) has testified in clear terms that deceased Muhammad Yaqub died instantaneously after he sustained injury on thigh, which position is disputed by the expert witness who has opined that probable time between injury and death was about one hour. The fatal injury was caused on thigh which is not the vital part of the body and the life of Muhammad Yaqub could have been saved by timely medical aid. Mere quantity of evidence leads us nowhere. Volume and weight of the evidence may be considered together, but if there is conflict between the two, the quantity will certainly give way to quality.
12. Amiruddin (P.W.2) and Shamsuddin (P.W.3), who are Mewati by caste, are admittedly residents of Lahore. They were staying in Unit No,12, Lateefabad, Hyderabad when they happened to be present near the Wardat and saw the incident. Amiruddin (P.W.2) states that on the relevant day he and his uncle Shamsuddin (P.W.3) had gone to meet their relative Ibrahim and while they were standing in a street in village Lalu Machi, they were attracted by the commotion and saw the incident. Shamsuddin (P.W.3), however, states that both of them were going to village Lalu Machi when on the way they saw the incident. According to these witnesses the parties were not known to them previously, but still they waited over the dead body of Muhammad Yaqub till the arrival of, police. They associated themselves throughout the investigation and had come from Lahore to testify against the appellant. As observed above, they are Mewati by caste like complainant Nazar Muhammad (P.W.1), who has tried to conceal this fact by giving a different caste in his statement before the trial Court. The F.I.R. (Exh.7), Mashirnama of Wardat (Exh.13) and inquest report (Exh.14) which are on record belie the version of complainant Nazar Muhammad to this effect, wherein his caste is shown as Mewati. Both of them are thus interested in complainant Nazar Muhammad (P.W.1). According to their own showing they arc chance witnesses and had no reason to be present at the Wardat which is about one mile away from village Lalu Machi. Besides the inherent weakness in the case of prosecution as we have pointed out above, these witnesses have contradicted each other on material particulars. Shamsuddin (P.W.3) has hinted about an umbrella which deceased Muhammad Yaqub was carrying at the time of incident. The other witnesses, however, belie him on this material point. Shah Nawaz S.H.O. (P.W.5) disputes the presence of the umbrella when he inspected the Wardat. All these factors when combined together, coupled with admitted F enmity between the parties, make the evidence of prosecution witnesses as shaky and unreliable. The learned Additional Sessions Judge was not expected to search laboriously and anxiously with a microscope for some truth which might be buried in the evidence. As Young J. Pointed out in Asmatullah v. Emperor AIR 1933 All. 896:- "Such procedure is wrong, a waste of valuable time and a danger to the public. It must frequently result in innocent persons being convicted. A conviction in such a case must largely be the result of guess work. The plain duty of the Court when it finds the prosecution case false and manufactured in material and vital particulars and supported by perjured evidence, is to throw the whole case without delay."
13. The motive behind a crime is a relevant fact. Motive according to Murray's Dictionary, is 'that which moves or induces a person to act in a certain way; a desire, fear or other emotion, or a consideration of reason which influences or tends to influence a person's volition; also often applied to a contemplated result or object, the desire of which tends to influence volition'. The motive is a factor to be taken along with other circumstances. It is, however, a double-edged sword and can be considered to be a ground for false implication.
14. The recovery of blood-stained clothes of appellant from his house situated in Unit No,12, Shah Lateefabad can be discarded for simple reason that they were not scaled on the spot. Bashir Ahmed (P.W.4) has admitted about this aspect of the case. The Mashir is again a caste-fellow of complainant Nazar Muhammad, who was all along associated with the investigation of this case.
The clothes of deceased Muhammad Yaqub were also recovered during the course of investigation, but only one set of clothes was sent to Chemical Examiner. The possibility of mistake in such circumstances, therefore, cannot be ruled out. The learned Additional Sessions Judges relied upon this piece of evidence against the appellant, although no such question was put to him in his statement recorded under section 342, Cr.P.C. No reliance, therefore, can be placed upon this piece of evidence.
15. The recovery of the knife from a place which was accessible to all has hardly any value. The possession of appellant in this context cannot be said to be exclusive. When examined such statement in juxtaposition to the version of Sardar Ali Baboo (D.W.1), who is Municipal Councilor of the area and who has testified that he had in fact produced the appellant before S.H.O., S.I.T.E.
Police Station on 3-8-1983 at 8 p.m., this recovery becomes doubtful. At any rate the circumstances stated above by us render the case of prosecution doubtful.
16. Having heard the entire evidence minutely dissected by counsel on both sides, it is perfectly clear to us that the prosecution has failed to prove the charge against the appellant beyond any reasonable doubt. The conviction and sentence recorded against him are accordingly set aside and the appellant is acquitted. He shall be released forthwith, if not required in any other case. The appeal is accepted.
17. The question of enhancement of sentence raised in Criminal Revision No, 41 of 1988, need not detain us long. The dame has become infructuous because of acceptance of appeal. Even otherwise a revision application under section 439, Cr.P.C. Is not competent in such an exigency. If any authority is needed reference may be had to Shera v. Crown reported in PLD 1954 FC 141 and Rahim Bux and others v. The State reported in PLD 1956 Kar.