QAISER AHMED HAMIDI, J.-- Appellants Nazeer, Rasheed, Mukhtar alias Matka and Haji Dildar were tried for the murder of Muhammad Din by IVth Additional Sessions Judge, Hyderabad, who vide judgment, dated 29-11--1988, convicted Nazeer, Rasheed and Mukhtar for the offence under section 302, P.P.C., and sentenced each of them to death. Appellant Haji Dildar was convicted for offence under section 302/109, P.P.C. And sentenced to death. Appellants Nazeer, Rasheed and Mukhtar have challenged their conviction and sentence by filing Criminal Appeal No. 187 of 1988. Appellant Haji Dildar filed separate appeal being No. 190 of 1988, against his conviction and sentence. The matter has also been referred to us under section 374, Cr.P.C. For confirmation of death sentences.
We propose to dispose of both the criminal appeals and murder reference by a single judgment.
2. Briefly stated the allegations against appellants Nazeer, Rasheed and Mukhtar are that on 13-5- 1983 at about 7-30 p.m., near Triangular Park, Hyderabad, they caused blows with `Chhuris'
(butcher's knife) to Muhammad Dm on the instigation of appellant Haji Dildar. Muhammad Din died in Liaquat Medical College Hospital, Hyderabad on night between 16th and 17th May, 1983, where he was operated upon. Deceased Muhammad Din was brother of Nanna, who alongwith his son Saeed had caused injuries to Rasheed and a case under section 307-324/34, P.P.C. Was registered against them on the report lodged by Nazeer. The said case was pending during the days when this incident took place. It is alleged that the appellants were annoyed with deceased Muhammad Din; who was pursuing the case pending against his brother Nanna and nephew Saeed. This is alleged to be the motive for the commission of this murder.
3. Saleemuddin, brother of deceased Muhammad Din lodged F.I.R. At Market Police Station, Hyderabad. Muhammad Yaqub S.I.P. Recorded the F.I.R. At 8-30 p.m. He then went to Liaquat Medical College Hospital, Hyderabad. The statement of Muhammad Din, who was lying unconscious, could not be recorded. The Police Officer then repaired to the scene of occurrence which was shown to him by complainant Saleemuddin. There were few drops of blood at that spot.
Such memo was then prepared in presence of Mashirs Ahsan and Abdul Rahim. He then recorded the statements of Abdul Hameed, Salahuddin and Jamil. On 14-5-1983, the Police Officer arrested appellants Nazeer, Rasheed, and Mukhtar. On 15-5-1983 the statements of Razi Ahmad, Muhammad Zair Khan Pathan, Muhammad Arif and Ramzan were recorded. Appellants Nazeer, Rasheed and Mukhtar then led the Investigating Officer to their house and produced three blood- stained `Chhuris' which were secured in presence of Mashirs Moula Bux and Ramzan and were sealed on the spot. Such Mashirnama was then prepared, Since complainant Slaeemuddin was not satisfied with the behaviour of police in the matter of recording of F.I.R. And further investigation, he also filed a direct complaint in the Court of Sessions, Hyderabad. As a result of direct complaint process was issued against all the appellants. Appellants Nazeer, Rasheed and Mukhtar were, however, already in custody in State case.
4. At the trial the prosecution has examined Saleemuddin (P:W.1), Jameel (P.W.2), Abdul Hameed (P.W.3), Dr. Muhammad Siddique (P.W.4), Salahuddin (P.W.5), Ahsan (P.W.6), Merajuddin A.S.I.
(P.W.7) and Muhammad Yaqoob Inspector (P.W.8).
5. The defence of the appellants was that of denial. Appellant Haji Dildar also pleaded alibi. Haji Dildar examined himself on oath (D.W.1).
6. The case of the prosecution hinges upon the following items of evidence:- (i)Ocular testimony consisting of Saleemuddin (P.W.1), Jameel (P.W.2), Abdul Hameed (P.W.3) and Salahuddin (P.W.5).
(ii)Recovery of blood-stained `Chhuris' from the house of appellants Nazeer, Rasheed and Mukhtar.
(iii)Motive.
7. Saleemuddin (P.W.1) is brother of deceased Muhammad Din. He speaks of a previous case between the parties lodged by appellant Nazeer against his brother Nanna and his son Saeed who were admittedly confined in Nara Jail, Hyderabad during the days when this incident took place.
Saleemuddin (P.W.1) has testified that on the relevant day he alongwith deceased Muhammad Din and cousin Abdul Hameed (P.W.3), were going to Bailkhana Road to their Nekmard Janu for settlement in the above case, and when at about 7-30 p.m. They reached near Triangular Park, Hyderabad, all the four appellants emerged there. Appellants Nazeer, Rasheed and Mukhtar had `Chhuris' to their hands and they on the instigation of appellant Haji Dildar caused `Chhuri' blows to deceased Muhammad Din, who fell down on the ground and went unconscious. The evidence of complainant Saleemuddin further shows that the incident was also witnessed by Jameel (P.W.2), Salahuddin (P.W.5) and Noor Muhammad (not examined). Babu Din, who resided near the scene of occurrence, was called and he was apprised of the incident. Muhammad Din was then taken to Liaquat Medical College Hospital, Hyderabad, and thereafter Saleemuddin rushed to Market Police Station, where his F.I.R. Was recorded at 8-30 p.m. The F.I.R. Recorded in this case within one hour of the incident is of considerable value and for the sake of convenience its translation is reproduced in extenso:- "The complaint is that I drive a donkey cart and my brother Muhammad Din alias Kala is businessm an of chickens. About 3 months prior to day, my nephew Saeed and brother Nanna had beaten Rashid alias Matla the case of which is filed at SITE Police Station and in that case they are both in jail. Today on 13-5-1983 myself, my paternal-cousin Abdul Hamid son of Muhammad Shafi and my brother Muhammad Din were going to bring Janoo from Bellkhana Road for the `Faisla' of this case when at about 19-30 hours we reached near Triangular Park, then from behind suddenly came (1) Nazeer son of Sagheer, (2) Rashid alias Matla son of Sagheer, (3) Mukhtiar alias Matka who had `Chhuri' m their hands. Within our sight they gave `Chhuri' blows to my brother Muhammad Din which stuck on his abdomen, back and other body. Muhammad Din got injured and fell down on the ground and the blood has oozed from his body. Then we raised cries and on our cries Jamil Shaikh Oureshi and other persons came there. On their coming all the three accused ran away. I took injured Muhammad Din for treatment to Civil Hospital and after admitting him there, I have come to lodge the report that the above accused have given `Chhuri' blows to my brother Muhammad Din with intent to murder him and to take revenge of their enmity. I lodge the report for taking action."
8.The following facts emerge from a bare perusal of F.I.R. (Exh.13):- (i)Appellant Haji Dildar was not implicated at the initial stage of case.
(ii)Jameel (P.W.2) who claims to be an eye-witness had come to the Wardat on cries.
(iii)Names of Salahuddin (P.W.5) and Noor Muhammad (not examined), the alleged eye-witnesses do not find place in F.I.R.
(iv)The name of Babu Din, a resident of locality who was apprised of the incident by Saleemuddin is not disclosed in F.I.R.
9. Undoubtedly, the value of F.I.R. Will vary according to circumstances attending to each case. The object of the F.I.R. Is to obtain the earliest information of an offence and where the F.I.R. Is lodged by a person who claims to have witnessed the occurrence, the omission of the name of one of the accused persons and the witnesses who figure as eye-witnesses raises an element of doubt and cannot be brushed aside lightly. Complainant Saleemuddin who was not satisfied with the behaviour of police in the matter of recording F.I.R. Waited for 13 days before filing complaint (Exh.23), why? Nobody knows. This is a suspicious circumstance. In such cases there is reprehensible practice on the part of complainants to implicate as many persons as possible in the enemy camp Some times even the relatives and supporters of the enemy party who are 1 perfectly innocent are falsely charged for having committed serious crimes. This appears to have been done in this case.
10. The enmity between the parties is not disputed. In fact an attempt has been made by the prosecution to place reliance upon this enmity as motive of the case. There is nothing on record to show that complainant Saleemuddin (P.W:4), Jameel (P.W.2), Abdul Hameed (P.W.3) and Salahuddin (F.W.5) resided near ' the place of incident. The tapedar was not examined in this case.
The memo of WARDAT prepared by Muhammad Yaqub S.I.P. (P.W.8), is, however, on record (Exh.40), which is silent about this aspect of the case. According to the case of prosecution as unfolded in F.I.R. (Exh.13), and complaint (Exh.23), deceased Muhammad Din, complainant Saleemuddin (P.W.1) and Abdul Hameed (P.W.3) were going to their Nekmard Janu for a FAISLA about the earlier case.
Abdul Hameed (P.W.3) admits in clear terms that this meeting was earlier settled. Janu was, however, not examined to throw light about this meeting which he had called for the purpose of FAISLA. In the absence of the evidence of Janu the presence of complainant Saleemuddin (P.W.1) and Abdul Hameed (P.W.3) with deceased Muhammad Din at the time of incident becomes doubtful.
11. The place of occurrence is situated in a thickly populated area. Shops and hotels are situated close to the place where deceased Muhammad Din was attacked. Nobody was however, examined on behalf of the prosecution from amongst those who were natural witnesses and instead the persons who happened to be present at the spot by chance have come forward as eye-witnesses.
Saleemuddin (P.W.1) is admittedly brother of deceased Muhammad Din. Jamil (P.W.2) has denied his `relationship with complainant Saleemuddin, but Saleemuddin himself admits that sister of Jameel is married to him. Abdul Hameed (P.W.3) is admittedly a cousin of complainant Saleenmuddin. Salahuddin (P.W.5) belongs to `bratheri' of Jarneel (EW.2). On close examination of the evidence, we have noticed that the prosecution witnesses have not only exaggerated their story, but have also freely mixed lies with truth in their statements and have spared no effort to paint the appellants as black as possible. Jameel (P.W.2) who claims to have been attracted on cries in his statement recorded under section 161, Cr.P.C., improves. His story by stating that he was present near triangular park talking with Salahuddin when he saw the incident. Likewise Salahuddin (P.W.5) who is a resident of Multan figures as eye-witness in I this case although his name was not disclosed in F.I.R.
12. When a Court has to appreciate evidence given by witnesses, who are partisan or interested, it has to be very careful in weighing such evidence. As observed in Sikandar v. The State reported in PLD 1963 SC 17, where natural witnesses are not produced by prosecution and the case is based on chance witnesses with background of enmity, then such evidence is not to be relied upon E in such circumstances. In order to sustain a conviction in a case inviting capital punishment, ocular evidence must come from an unimpeachable source, or if such a source be not available, it must be supported by some strong circumstance, such as might serve to overcome the inherent doubt by which such evidence is necessarily affected. This was the view laid down in Thoba and another v. The State reported in PLD 1963 SC 40.
13. The case of the prosecution as unfolded before the Court again appears to be improbable.
Criminal cases are decided on a broad view of the evidence and taking into consideration the surrounding circumstances attending to each case. The probability of the evidence is an important consideration in arriving to a certain conclusion. The manner in which five persons, who claim to have seen the incident, have conducted themselves again leads to the conclusion that none of them was present when deceased Muhammad Din was given injuries by means of sharp-weapon.
In our opinion, it would be wholly unsafe to depend upon the testimony of the prosecution witnesses who have undoubtedly tried to magnify the case and to improve upon it at different stages.
14. The recovery of `Chhuris' which were found to be stained with human blood, at the instance of appellants Nazeer, Rasheed and Mulkhtar is not proved satisfactorily. In Amir A.I v. The State reported in PLD 1960 Kar. 753, it was held by a Division Bench of this Court, that where joint acts of several persons are sought to be proved, in order to ask the Court to draw an inference from such conduct, evidence should be led with some degree of particularity so that it may be possible for the Court to draw the necessary inference from the conduct of each one of the persons concerned in the act. No reliance, therefore, can be placed upon joint recovery at the instance of appellants Nazeer, Rasheed and Mukhtar, especially when the Mashirs of the recovery were not examined during the course of trial. This view was followed in Khalas Khan and another v. The State reported in 1975 P Cr. L J 172, and Abdul Ghani and 3 others v. The State reported in 1976 P Cr. L J 1462.
14. After discarding the above evidence we are now left with the evidence of K motive which by itself is not sufficient to base conviction. Even otherwise motive is another name of enmity, which can be a ground for false implication of accused persons.
15. Before parting with this judgment we may point out that the evidence of Medical Officer, who had received injured Muhammad Din, was necessary to find out the actual cause of death. Dr. Muhammad Siddique (P.W.4) had simply conducted the autopsy on the dead body of Muhammad Din and he was not in a position, to state about the condition of injured and injuries at the time when Muhammad Din was received in the hospital. Since the factum of unnatural death of Muhammad Din was not questioned on behalf of appellants, no further comments are called for.
16. We would, therefore, accept the above appeals and acquit all the four appellants. The reference for confirmation of their death sentence is rejected.
17. We have already by a short order dated 10-1-1989, directed that the appellants shall be released forthwith, if not required in any other case. These are the reasons for the said short order.