1. ' The appellants Afzal Hussain, Muhammad Tariq, and Jamil Ahmed were charged under section 302/34, P.P.C. For committing murder of one Riasat Hussain, and tried before the learned IVth Additional Sessions Judge, Karachi, West, who had convicted the appellants and sentenced them to life imprisonment, and to pay fine of Rs,2,000 each, in default they were to suffer further R.I. For two months each. Fine if paid, the same was to be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. ' The brief facts of the prosecution case are that on 21-7-1974, one Riasat Hussain lodged a report at P.S. Orangi Town, Karachi inter alia alleging therein that he resides in Qasba Colony, Karachi, since 8/9 years along with his family and was employed in K.DA. Pipe Factory. He has married his eldest son Syed Riasat Hussain about 3/4 years and he was residing in a separate house in Qasba Colony. Syed Riasat Hussain used to earn his livelihood by selling clothes in Saddar on footpath.
3. Today, being Sunday Riasat Hussain was enjoying holiday, and he too was at home due to holiday being Sunday. At about 11-00 a.m. While he was sitting in his house a boy came running and informed him that Syed Riasat Hussain had received knife blows at Hussain Hotel and had died there. He went running to the Hussain Hotel and found that one Bachan Khan was holding Riasat Hussain in his lap with the help of arms. He found his son dead. Bachan Khan informed him that Tariq and Jamil had injured his son Syed Riasat Hussain by giving him Chhuri blows within his sight and both of them had fled away waving Chhuris in the air. Many people collected there who had witnessed this incident. The complainant then went to the police station and lodged his report, which was recorded by S.H.O. Muhammad Munir Chaudhary. He then went to the Wardat and prepared Mashirnama of dead body and Wardat which has been produced as Exh.11. He arrested accused Afzal Hussain who led the police and Mashirs Muhammad Rafiq and Rashid Akhtar to a bush opposite house No, 4, and produced blood-stained hatchet which was secured under Mashirnama, and the Mashirnama has been produced as Exh.17-A. He recorded the statements of witnesses under section 161, Cr.P.C. And after necessary investigation the appellants were challaned before the Court.
4. ' The case proceeded before the committal Court and the depositions of some of the witnesses were recorded. However, the case was sent up to the Sessions Court after the amendments in the Criminal Procedure Code.
5. ' A formal charge was framed against the appellants to which they pleaded not guilty.
6. ' At the trial, prosecution examined complainant Riasat Hussain P.W.1, he has produced the F.I.R. As Exh.8, Bachan Khan, an eye-witness and Mashir of Wardat P.W.2, he has produced Mashirnama of Wardat as Exh.11, Sardar Khan, P.W.3, he did not support the prosecution and was declared hostile.
7. His 164, Cr.P.C. Statement was brought on record as Exh.13-A, Process-server Liaquat Ali P.W.4, he has produced summons issued against P.Ws. Roshandin, Abid Hussain, Rashid Akhtar, Muhammad Ramzan, Haseen Uddin, Mushtaq, Nasiruddin, S.H.O. Munir Hussain, Dr. A.H.K. Sherwani and Dr. Amirul Hassan. He has produced the summons as Exhs.16/A to 16/G and reports as Exhs.16/H to 16/J, Dr. Abdul Hadi Khan. Police Surgeon P.W.6, he has produced post-mortem notes as Exh.18-B.
8. Deposition of P.Ws. Roshandin, Haseen Uddin, Abdul Ghafoor and Mashir Muhammad Rafiq were brought on record as Exhs. 27 to Exh.30 under section 288, Cr.P.C. Dr. Abdul Hadi Khan has deposed that on 22-7-1974, he was working as Police Surgeon and had carried on post-mortem examination on the dead body of Riasat Hussain. On external examination he found six incised injuries on the person of deceased. According to him, the injuries Nos. 1, 2 and 3 were sufficient to cause death in ordinary course of nature. The death was due to Coma and Shock as a result of homicidal injuries inflicted on the body by sharp-edged and cutting heavy weapon and sharp- edged and pointed weapon, such as, an axe, or hatchet and a long knife, Chhuri or any other similar weapon of assault respectively.
9. ' Complainant Syed Riasat Hussain has supported the contents of his F.I.R. He has further stated that he was informed by a boy that Muhammad Tariq and others were killing his son opposite Hussain Hotel. He immediately rushed to the place of Wardat and found his son lying dead with hatchet and Chhuri injuries. P.Ws. Abid and Bachan Khan and others were present. In cross- examination he has deposed that when he reached the place of occurrence all the accused had ran away from the place of incident. He has denied a suggestion that his son was history sheeter and was facing trial in criminal cases. However, he has admitted that some cases were filed against him regarding fight and he was acquitted. He has denied a suggestion that some Mohallah people had enmity with his son and, therefore, his son was killed.
10. ' Bachan Khan P.W.2, has deposed that he knew accused, deceased, and his father. Deceased Riasat Hussain was his friend since childhood. On 21-6-1976, at 10-00 a.m. He came to the Bazar and met deceased Riasat Hussain at Laundary shop. The deceased was feeling uneasy and, therefore, asked him to show him a picture in the Cinema Hall. They agreed that fare of rickshaw shall be paid by him while cinema ticket will be arranged by the deceased. Then both of them went to take a cup of tea at Hussain Hotel. While they were taking tea, the accused entered the hotel. The accused exchanged greetings with him and deceased. The accused shook hands with them.
11. Accused Muhammad Tariq and Jamil Ahmed who had already inflicted Chhuri injuries to deceased on his stomach were seen by him taking out Chhuri from stomach of the deceased.
12. Accused Afzal Ahmed gave hatchet blows on the back of the head of the deceased. He had not seen accused Tariq and Jamil inflicting the injuries to the deceased but he had seen them taking out the Chhuri. He abused the accused on which Tariq and Jamil tried to give him Chhuri blows but he managed to withdraw his body and thus saved himself. The accused then ran away from the place of occurrence. He gave first aid to the deceased and told the children to inform father of the deceased that his son has been killed by Afzal, Tariq and Jamil. Deceased died at the spot. The complainant came at the spot and saw his son and then went to the police station. The police inspected the place of incident in his presence and obtained his signatures. He has produced Mashirnama as Exh.11. His statement was recorded under section 164, Cr.P.C. And the same has been produced as Exh.12. In cross-examination, he has deposed that some cases of fight were filed against the deceased. 15/20 persons were sitting at the shop which was adjacent to the place of occurrence. While 3/4 persons were sitting in the hotel. He did not remember the names of those persons. Police did not secure his blood-stained clothes. The father of the deceased came at the place of incident and inquired from him and he narrated the incident to him.
13. ' Sardar Khan P.W.3 did not support the prosecution and, therefore, he was declared hostile.
14. ' P.C. Liaquat All P.W.4, was given summons for serving P.Ws. Roshandin, Abid Hussain, Rashid Akhtar, Muhammad Ramzan, Haseen Uddin, Mushtaq, Muhammad Zaman, Nasiruddin, S.H.O. Munir Hussain, Dr. A.H.K. Sherwani and Dr. Amirul Hasan. According to him, he came to know that P.Ws.
15. Abid Hussain, Rashid Akhtar and Ramzan had expired, P.Ws Roshandin and Naseeruddin had left for Punjab P.W. Haseen Uddin, Mushtaq Muhammad Zaman had shifted their place of residence and their where abouts were not known. He has produced the unexecuted summons as Exhs.16-A to 16- G. He has also produced his reports as Exhs.16/H to 16/J.
16. ' The lower Court depositions of P.Ws. Roshandin was brought on record under section 288, Cr.P.C.
17. And produced as Exh.27. Haseen Uddin as Exh.28, Abdul Ghafoor as Exh.29, and Mashir Muhammad Rafique as Exh.30.
18. ' As far as the evidence of P.W Roshandin was concerned: he had deposed that he was taking tea in the hotel, so also deceased Riasat Hussain. After a little while all the three accused came inside the hotel, accused Afzal Ahmed was armed with hatchet, while the remaining two were armed with knives. All the three accused came near the deceased and told him that he had been beating them till today and he should be alert. On this deceased got up, accused Afzal Ahmed gave him hatchet blow on the head while Jamil and Tariq gave him knife injuries on his abdomen. The deceased then fell down on the ground while accused ran away. The accused and deceased were known to him as they were residing in their Mohallah 5/6 persons were sitting in the hotel and one of them was Sardar. He could not give the names of other persons. He was present there till the arrival of police. Police had recorded his statement after 2/3 days. His 164, Cr.P.C. Statement was also recorded which he has produced as Exh.27-A. In cross-examination, he has deposed that he had not seen the incident with his own eyes. He was illiterate. He does not know English as well as Urdu. He did not know what was written in the statement. The statement was not read over to him.
19. P.W. Bachan Khan was present when father of deceased reached there.
20. ' P.W. Haseen Uddin has supported the prosecution in examination-inchief but in cross- examination he has deposed that:- "It is correct that I had not seen the incident."
21. ' P.W. Abdul Ghafooi Exh.29, did not support the prosecution and, therefore, he was declared hostile and cross-examined.
22. ' P.W. Muhammad Rafiq (Mashir) Exh.30, has deposed in lower Court that he did not know about the date of incident. He was sleeping in his house when at 11-00 a.m. Some body knocked the door. He came outside and saw the police and an axe was in the hands of police official. Police told him that they had recovered the axe from bushes. He was declared hostile and cross-examined by A.P.P. In cross-examination he has deposed that he did not make any statement before a Magistrate. He had seen the axe being recovered from the bushes. He did not know any of the accused.
23. ' After close of the prosecution case, the statements of appellants were recorded in which they denied the allegations. It was further stated that P.W. Bachan Khan was friend of deceased and was giving false evidence due to friendship. The deceased was a man of bad character and had enmity with many persons. Accused Afzal Ahmed further denied the production of blood-stained hatchet.
24. ' They also examined themselves on oath.
25. ' The learned trial Judge while relying upon the ocular evidence has convicted the appellants as described above, and the present appeal is directed against the said judgment of conviction.
26. ' I have heard Mr. Azizullah K. Shaikh, learned counsel appearing for the appellants, Mr. Hayat Qureshi, learned counsel for the State, and have also gone through the R&P of the case.
27. ' It was contended by Mr. Azizullah K. Shaikh, learned counsel appearing for the appellants that the learned trial Judge had erred in convicting the appellants on the sole evidence of Bachan Khan P.W.2. Inasmuch as the F.I.R. Shows that the complainant had lodged the report after obtaining information from Bachan Khan, and that it further shows that the deceased was killed by Muhammad Tariq and Jamil Ahmed but in the Court P.W. Bachan Khan has involved third innocent person namely, Afzal Hussain and, therefore, his evidence could not be relied upon without independent corroboration. P.W. Bachan Khan was close friend of deceased as admitted by him. As far as the evidence of P.Ws. Roshanuddin, Haseen Uddin and Abdul Ghafoor was concerned, P.W.
28. Abdul Ghafoor did not support the prosecution and, therefore, he was declaree hostile and cross- examined, while P.W. Roshanuddin and Haseenuddin had admitted in cross-examination that they had not seen the incident with their own eyes. It was further contended that there was no incriminating recovery from appellants Muhammad Tariq and Jamil Ahmed, while recovery of blood-stained hatchet was not supported by Mashir Muhammad Rafique Exh.30. That the co- Mashir was not examined, and the Investigating Officer Munir Hussain being dead, the Mashirnama was produced through Muhammad Raziq, A.S.I. P.W.5, to prove handwriting and signature of the Investigating Officer, but in any case, the Mashirnama was not a substantive piece of evidence.
29. That the property was not produced in Court nor it was sent to the chemical examiner and, therefore, no reliance could be placed on the said recovery.
30. ' Mr. Hayat Qureshi, learned counsel appearing for the State has contended that in view of the above circumstances, the ocular evidence was unreliable and since there was no corroboration he would not support the judgment of conviction. So far as the unnatural death of Riasat Hussain was concerned, it +as been proved through medical evidence, and ocular evidence of complainant and P.W. Bachan Khan. Even it has not been disputed by the learned counsel appearing for the appellants.
31. I have considered the contentions of the learned counsel. In the F.I.R. The names of appellants Tariq Khan and Jamil Ahmed have been mentioned as accused, while the name of appellant Afzal Hussain does not appear. It was the case of the complainant in the F.I.R. That he had met P.W.
32. Bachan Khan at the Wardat and after receiving facts of the incident from him, he went to the police station and lodged his report. In the Court, the appellant Afzal Hussain was also implicated and it has been alleged that he had also given hatchet injuries to the deceased. P.W. Bachan Khan has admitted in his evidence that he was close friend of deceased Riasat Hussain. In the above circumstances, it is clear that appellant Afzal Hussain was implicated later on and, therefore, the evidence of Bachan Khan, the star witness of the prosecution required independent corroboration with regard to participation of each accused.
33. ' As far as the evidence of P.Ws. Roshanuddin and Haseenuddin was concerned, on one hand the evidence of process-server Liaqat Ali does not show that any serious attempts were made to find out their whereabouts. The report only shows that he had gone to serve them once and, therefore, it was not enough to bring their evidence on record under section 288, Cr.P.C. It appears that no serious efforts were made to serve these witnesses. Even otherwise, these witnesses had stated in their cross-examination before the lower Court that they had not seen the incident with their own eyes and it was, therefore, that P.W. Haseenuddin was declared hostile after cross-examination by defence counsel, and learned A.P.P. Was allowed to cross-examine him. However, it appears from the deposition that his cross-examination was reserved and he never appeared thereafter. In view of the above discussion the evidence of Roshanuddin and Haseenuddin was inadmissible on one hand, and did not advance the case of the prosecution on the other hand, specially, because of their admission in cross-examination. P.W. Abdul Ghafoor did not support the prosecution and, therefore, he was declared hostile and cross-examined.
34. ' As far as the recovery of blood-stained hatchet from appellant Afzal Hussain was concerned, Mashir Muhammad Rafiq did not support the recovery in the committal Court. He was not available in the Sessions Court, and coMashir was not examined by the prosecution. Investigating Officer was dead and, therefore, A.S.I. Muhammad Raziq was examined to prove the handwriting and signature of the Investigating Officer. However, in view of the fact that the Investigating Officer was dead and could not be examined, and the Mashirnama was not a substantive piece of evidence, the recovery could not be proved through the A.S.I. In addition thereto, the hatchet was not produced in Court nor chemical report was produced to show that the hatchet allegedly recovered from appellant Afzal Hussain was blood-stained. In view of the above infirmities, recovery of hatchet is ruled out of consideration.
35. ' From the factual as well as legal position it is clear that the prosecution had failed to prove its case beyond reasonable doubt against the appellants andr therefore, while extending the benefit of doubt to the appellants, I allow this appeal, set aside their convictions and sentences and they are acquitted of the charge. They shall be set at liberty forthwith if not required in any other case.
36. ' I had decided the above appeal on 3-10-1988 by a short order and these are the reasons for the same.