MUHAMMAD HALEEM, J.-Appellant Sajjad was tried for the murder of Abdul Hamid, convicted under section 302, P. P. C. And sentenced to death by the IV Additional Sessions .Fudge, Karachi, vide judgment dated 29th November 1971. He has appealed against his conviction while the Additional Sessions Judge has referred his case for confirmation of death sentence. This judg--ment will dispose of the appeal and the reference.
2. The appellant was serving in the Pakistan Navy as an ordinary seaman while Abdul Hamid was a taxi driver of the vehicle bearing registration No. KAX 4761 owned by Abdul Shakoor. Sabz Ali, Head Constable, along with Adalat Khan constable attached to police out-post Ibrahim Hyderi while on patrol duty at 5-30 p.m. On 1st December 1969 saw an abandoned taxi parked near 'Naryal Baghicha' away from the road, which was repainted black. He - opened its door and noticed inside it blood on the mats, a cigarette packet with the stamped words "Duty free P. N. Ships", a match box, a chappal soiled with blood and a bottle lying under the driver's seat with some liquid in it. He gave this information to Muhammad Azam A. S. I. Who was also on patrol duty. Muhammad Azam repaired to the place where the taxi was parked and himself inspected it and sawthe above articles lying inside the taxi. He opened the boot of the taxi and saw a shoulder bag off' light blue colour with the words "English Pak" and "Pakistan International Air Bag", a torch, two small tins of paint, one black and the other white, ore taxi token number, route permit and registration certificate of vehicle No. KAX 4760 in the name of Ghulam Nabi, lying in it. All these articles were seized in the presence of mashirs, Muhammad Akram and Muhammad Ismail, and the taxi vitas brought to Police Station Korangi. Since Abdul Hamid had not reported back taw Abdul Shakoor, the owner of the taxi, for more than 24 hours, he went and enquired from his wife, Mst. Firdous as to his whereabouts who also told him that he had not returned and that slue was not aware where he was. Hearing this reply, Abdul Shakoor lodged a report at Police Station Brigade at 19-15 hours on 1st December 1969 as to the disappearance of Abdul Hamid along with taxi No. KAX 4761 from 08-00 hours the previous day. This information was entered 'in the station diary at serial No. 47 (Exh. 3).
Abdul Shakoor also went in search of it and at Police Station Korangi he found his taxi parked. Its colour was changed to black and its registration plate was also replaced with the one bearing No. KAX 6815, he then 'informed the officer in charge of the police station that 'it was his taxi, who in turn obtained other relevant information concerning it. Abdul Hakim on being informed by his younger brother, Abdul Maid, that Abdul Hamid, had taken his taxi in the morning of 30th November 1969 but had not returned and that that his taxi soiled with blood was parked at Police Station Korangi, went there and lodged the first information report (Exh. 6) about his disappearance at 17-00 hours on 2nd December 1969. Muhammad Ishaq S. I. Along with Abdul Hakim and others went to the place where the taxi was seen abandoned and searched the place for the dead body which was found buried in the sand with feet protruding. It was taken out and identified to be that of the deceased.
There were no clothes on the body and the throat was cut and the head was attached to the body by some muscles. His pant, bush shirt, muter, banyan, sweeter, chappal, rope with knots on both sides and a duster were also secured, which were lying concealed in the sand, under mashirnama (Exh. 40). The clothes were soiled with blood and were identified to be that of the deceased by his brother Abdul Hakim. The dead body was sent for post-mortem examination.
3. Muhammad Yahya, A. S. I. Of the Finger Print Bureau, inspected the vehicle on 2nd December 1969 and observed two finger prints on the glass pane of the door next to the driver's seat and transferred them to the tape. He next applied chemical on the boot and observed "one or two finger marks" which were also transferred to the tape. These tapes were sent to Hamid Hussain Khan, Fingerprint Expert. .
4. During the investigation, the name of the appellant transpired. Accordingly Lai Muhammad A.S.I.
Was deputed to arrest the appellant from his village within the jurisdiction of Police Station Sahiwal in district Sargodha, who proceeded to that place and arrested the appellant on 11th December 1969 and at his pointation he opened the box of the appellant which was lying in the house and secured from it the driving licence of the deceased vide mashirnama (Exh. 8) in the presence of mashirs, Ata Muhammad and Muhammad Sher. He thereafter brought the appellant to Karachi. On 15th December 1969 he led the police to a place near `Naryal Baghicha' and from under the root of a tree he took out a razor which was secured vide mashirnama (Exh. 19) in the presence of Muhammad Umar. Again on 21st December 1969 the appellant led the police to the same place from where the dead body was recovered and produced a blood-stained 'chadar' which was concealed in the sand in the presence of mashir, Shakardin. This was seized vide mashirnama (Exh.
34), Specimen fingerprints of the appellant taken on 15th December 1969 were sent for comparison with those transferred to the tape on 23rd December 1969 and according to the opinion of Finger-- print Expert, Hamid Hussain Khan, the specimen fingerprints matched with those transferred to the tape.
5. The autopsy on the dead body was performed by Dr. Muhammad Umar who noticed the following injury:---- "(i) Neck was cut through and through partly attached with a small portion of soft part i.e. Muscles and ligaments on the left side of neck. The cut was at the level of 2nd and 3rd cervical vertebra which was separated cutting the spinal cord as well. The cut had started from one inch below right ear extend--ing infront 1--' below chin to left side neck 1--' below the left---lobule."
In his opinion, the injury was sufficient to cause death in the ordinary course of nature and that it was caused by a sharp-edged weapon.
6. The earth, chadar, razor, bottle containing liquid, rubber mats, shoulder bag, pair of black chappals, clothes of the deceased, cope, duster and amulet were sent for analysis to the Chemical Analyser and, according to his report (Exh. 48) except for the bottle containing the liquid which was determined to be chloro--form, the other articles were stained with human blood. Blood grouping disclosed that the blood on the clothes of the deceased, amulet, rope and the duster was of the same group `A B' as that of the blood on the chadar.
7. The appellant denied the prosecution case and pleaded his false implication in the case. In the committal Court he alleged enmity with Sher Muhammad and as regards the other witnesses he stated that they were falsely get up against him. In the trial Court he ascribed the following reason for the enmity against Imam Bux and Rafiq:-.- "Imam Bux was our every enemy as we had got his uncle Khadim Husain and Muhammad Husain hauled under sections 109 and 107, Criminal Procedure Code. I am married to Mst. Maqsoodan daughter of Munawar who was earlier betrothed to Rafiq. Hence he is my enemy. Raliq and Imambux have falsely got me implicated in this case."
He denied his presence in the house of Imambux on 30th November 1969 and also his fingerprints alleged to have been discovered on the vehicle and pleaded that he never boarded the vehicle. He also denied the recovery of the driving licence of the deceased. He repudiated the recovery of the razor and the chadar at his instance and led no evidence in defence. While the appeal was being argued we found that certain questions were not put to the appellant. We, therefore, further examined him so as to get his explanation. He denied having resided with Shahabuddin son of Shamsuddin and also that he left the house of Shahabuddin at about 2 a.m. On 1st December 1969 taking with him a hand bag, bottle, razor and a torch. He further denied the presence of his hand bag in the boot of the car. On the close of his examination he stated that he would not examine any witness in defence.
8. There is no direct evidence in the case and the conviction rests on the circumstantial evidence.
The first category. Of this . Kind of evidence is the association of the appellant with the deceased in that he was seen with him at different times on 28th and 29th November 1969 and at about 1 or 2 a.m. On 1st December 1969. The prosecution examined Bashir Ahmad, Shahabuddin son of Babu Khan and Ramzan to establish the above facts. Connected with this circumstance is the evidence of Shahabuddin son of Shamsuddin, in whose house it was alleged that the appellant had stayed on the night intervening between 30th November and 1st December 1969 and had gone out on being called by his name at about 2 am taking along with him the shoulder bag, torch and the bottle. The second category relates to the seizure of the driving licence secured from his box which was lying in his house in District Sargodha. The third category of evidence is the recovery of the razor and the chadar at his pointation both of which were stained with human blood and that on the chadar blood was of the same group as that on the articles above-stated. The fourth category is the evidence of matching of the finger prints detected on the vehicle with the specimen finger, prints of the appellant. The fifth and the last category relates to the evidence of his acquaintances, namely Imambux, Muhammad Rafiq, Mushtaq, Sattar and Shaikh Muhammad Rafiq son of Shaikh Muhammad Siddiq, with whom he had kept Rs. 70 as deposit on 3rd or 4th December 1969 and had taken it back sometime there--after. The other witnesses in this category speak of his visit to them in November and early December 1969, along with the shoulder bag which was alleged to have been recovered from the boot of the car, and at least two of them, namely Muhammad Rafiq and Sardar further state that they had seen "Capstain cigarette packets'.', torch, razor and the bottle in it.
9: Reverting now to the first piece of evidence, the trial Court accepted it and held it to establish that the deceased was host been alive with the appellant. While appraising the evidence of Bashir Ahmad the trial Court disregarded the minor contradic--tions for the following : "However, he could only bring out certain minor contradic--tions about the timings and about the witness accompanying them in their taxi. So far as the timing is concerned the mention of 10 a.m. In place of 10 p.m. Is not material and can be due to a clerical mistake. Similarly the omission of the fact that he accompanied theta in the taxi for some distance is also not material. On the contrary this shows that the witness is not tutored."
His evidence even if accepted will not implicate the appellant as, according to the version of the widow of the deceased, Mst. Firdous, the deceased was in the house on the fateful night and had left for taking tea at Sabir's hotel at 1 a.m. Any association prior to this time cannot be regarded as incriminating. Even other--wise the meeting appears to be only by chance and in this context if there is variation of time, it cannot be minimised and explained away on the ground that it was due to a clerical mistake. His assertion that he had gone in the taxi of the deceased from Jutland Line up to Shabab Hotel was an addition which he admit--ted not to have made in his section 161 statement, and that since it facilitated the identity of the appellant its omission affects the credibility of his version and it cannot be explained away on the hypothesis that he was not tutored. He was not put to any identifi--cation test and for the first time in Court he identified the appellant. Under the circumstances it is not possible to accept his version that he had seen the appellant in the taxi of deceased for a taxi plies on hire and carries many passengers in the course of the day and it is not possible to figure out any particular passenger. There is also no reason for a taxi driver to ask for the identity of a passenger. Its evidence appears to be unnatural and of a chance witness and we would not place any reliance on it. The second witness in this category is Shahabuddin son of Shamsuddin. According to his version the deceased had stayed in the house on the fateful night and left at 2 a.m. Taking along with him the shoulder bag, torch, and the bottle.
Hs and the appellant were sleeping in the courtyard at that tinge. He also stated that some one called the appellant from outside by his name and on being asked by him (Shahabuddin) as to who he was, the appellant told him that he was a taxi driver and that he had to go along with him in connec--tion with some work. It is significant to note that he admitted not having stated in his section 161 statement that the appellant told hire that he was being called by a taxi driver and that he was going with him. This appears to be an addition, which is intended to connect the appellant with the deceased and if the appellant had in fact told him as to with whom he was going then there was no reason for him to omit its mention in his section 161 statement. This witness has admitted that though the appellant visited him for the last one year yet it was the first occasion that he had slept in the house. Why the appellant would sleep in his house is again a suspicious feature. It is also not possible to accept that Shahabud---din while lying on his cot in the courtyard could observe with clarity what the appellant was doing inside the room. Under the circumstances, it is doubtful whether this witness could have seen the appellant picking up the torch and the bottle and keeping them in the bag. Equally it is not understandable why he would display these articles.
This witness has admitted in cross-exami--nation-that it was Shahabuddin son of Babu Khan who had dis--closed to the police that the appellant had stayed with him, but there is nothing in the testimony of Shahabuddin son of Babu Khan to corroborate this fact. How would Shahabuddin son of Babu Khan know about it, is again a mystery. There is also some confusion about the time at which the deceased is alleged to have left. According to this witness, the appellant left the house at 2 a.m. While Shahabuddin son of Babu Khan states that the deceased had come to his hotel at 1- 30 or 1-45 a.m. And Muhammad Ramzan puts it at "about 1 or 2 a.m." Having regard to the above features it is not possible to place reliance on the evidence of this witness. Next in this category is the evidence of Shahabuddin son of Babu Khan and Ramzan. The former runs a hotel while the latter is a rickshaw driver. The trial Court while assessing their evidence has believed it and held it to have established that the deceased was last seen in the company of the appellant. Considering the testimony of these witnesses together, there is apparent inconsistency between them. While Shahabuddin states that the deceased had first come alone and ordered him to prepare four boiled eggs, butter bun and tea and thereafter sat on the table, where he was joined by the appellant and Ramzan and that all of them ate together and left in a body in the taxi of the deceased. Ramzan gives another version and states that when he came to the hotel the deceased and the appellant were already there and that he gave his separate, order for tea and after taking it as he was departing the deceased offered to give him lift up to his house, which be accepted and on being dropped there the deceased and the appellant drove away. Shahabuddin has not stated that he knew the appellant from before and though he was put to identification test and had identified the appellant in jail yet the evidence of identification is given only by. Raja Sultan Ahmad S. H. O. It is trot apparent from his evidence as to why the identification was not witnessed by a Magistrate and therefore under the circumstances it is not possible to give any weight to it, for there is room for doubt as to its bona fides. Another feature in the evidence of Shahabuddin is that his father had closed the hotel at midnight. How was it then that at 1-30 or 1-45 a.m. He was ordered to prepare breakfast when he had root opened the hotel. Similarly Ramzan has not stated that he knew the appellant from before and his subsequent identification of the appellant in jail is again open to doubt in the circumstances mentioned above. The above features in their evidence appear to bb suspicious and do not inspire confidence. Even assuming if what is deposed to is correct still it cannot establish that the appellant was last seen in the company of the deceased.
The time of death has not been fixed. The abandoned taxi was discovered at 5-30 p.m on 1 December while the dead body was recovered on 2nd December 1969, and the autopsy was performed on 3rd December 1969. According to Dr. Muhammad Umar, the time of death was 2 or 3 days before. The prosecution accordingly has not excluded the possibility of the appellant having parted the company of the deceased after he had left the hotel. It is, therefore, not possible to accept the view of the trial Court that their evidence establishes that the deceased was last seen alive in the company of the appellant.
10. The second piece of incriminating evidence is the recovery of the driving licence of the deceased from the box of the appellant. Two mashirs, namely Ata Muhammad Khan, retired D. S. P.
And Muhammad Shaikh, a shopkeeper, were examined to prove it and none of them supported it.
According to Ata Muhammad Khan when he was asked to act as a mashir Lal Muhammad A. S. I.
Was holding the driving licence in his hand. Muhammad Shaikh, who had accompanied the retired D. S. P. On his errand to bring grass from his land, also deposed to the same effect. Both of them were declared hostile and cross-examined. The trial Court has accepted this piece of evidence merely upon the testimony of Lai Muhammad. It has further held that it is not believable that Ata Muhammad, who is a retired D.S.P. Would sign a false mashirnama and that his explanation that "he did so only to pacify the mob" is far from satisfactory. In this view of the matter, it held that he was won over and has given false evidence. As to Muhammad Shaikh, the opinion of the trial Court is that he was his servant and has given false evidence at his instance. The facts and circumstances attending the crime give an impression that the identity of the vehicle as well as of the deceased was attempted to be concealed. Not only was the colour of the taxi changed but that after the deceased was killed he was buried naked while his clothes lay apart and were secured from under the sand. Why would then the appellant carry with him the driving licence when he could have disposed it of conveniently. This feature has given us anxious moment and we are unable to reconcile it with its seizure from the box of the appellant. In this view of the matter, whatever may have been the reason for the mashirs to vary their version from the mashirnama, it is a doubt--ful recovery and cannot lend any support to the guilt of the appellant.
11. The third category embraces the seizure of a razor and a chadar at the instance of the appellant, which again is of doubt--ful authenticity. The razor was recovered on 15th December 1969, in the presence of mashir, Muhammad Umar. While in the' examination-in-chief he deposed "thest accused led the police in my presence to a place near a tree and from under the root of the tree took out a razor and produced before the police", yet he admitted having stated in his deposition before the Inquiry Magistrate that "the Asiura was lying nearby" and that it was visible from 3 or 4 paces. Muhammad Azam A. S. I., who had accompanied the appellant and the mashir, merely stated that on the pointation of the appellant he secured a blood-stained razor from under a bush and that he had sealed the razor after wrapping it in paper but did not obtain the signature -of the mashir on it.
The razor was, however, handed over to Mukhtar Aqa Naqvi S. H. O. Not by Muhammad Azam but by Lai Muhammad A. S. I. He, however, doe's not speak of the fact that it was wrapped in a paper and all that he says is that Lai Muhammad produced a razor. In the circumstances, it is again doubtful whether it was so wrapped. The place from where the recovery of razor was alleged to have been made' was near about the place from where the dead body was recovered. In the context of this evidence it is doubtful whether .The recovery of the razor can be regarded as one from the place, of which the appellant had the exclusive know--ledge, particularly when the mashir is not consistent as to the manner, in which the razor was seized. If it was visible and. Lying nearby then its exclusive knowledge cannot be brought hoe to the appellant when it could otherwise have been discovered by a search of the place as in the case of other articles, which were so recovered. The trial Court while accepting the recovery of the razor at the instance of the appellant held that even if it was lying "in the root of bush" yet it may be visible from a distance of 3 or 4 paces and still it can be regarded as concealed, for "ordinarily it will not be visible to any person who passes by the bush until and unless he is conscious of its lying there". Evidently there is a dispute as to whether it was recovered from under the bush or from the root of the tree. The mashir speaks of the root of the tree and in cross-examination admits that it was lying nearby with--out referring to either a tree or a bush, while Muhammad Azam says that it was recovered from under a bush. The above reason-- ing of the trial Court accordingly cannot exclude the doubt. The chadar was recovered in the presence of mashir, Shakardin, on 21st December 1969, six days after the recovery of the razor. It was lying under the sand at a place about 30 paces away from where the dead body was recovered. It is not identified to have belonged to the deceased and surprisingly though it was recovered on 21st December 1969, yet Mukhtar Aqa Naqvi S. H. O. States that Lai Muhammad had produced before him a blood-stained chadar on 15th December 1969, and not only this he further states that it was Lai Muhammad who had secured it at the pointation of the appellant, whereas in point of fact it was Muhammad Ishaq A. S. I. Who was responsible for its seizure. The delay in the seizure of the article coupled with the circumstance that before the date of its actual recovery it was handed over to Mukhtar Aqa Naqvi, in the absence of any explanation by the prosecution, raises a grave suspicion as to the bona fides of the recovery: The trial Court has accepted the evidence of recovery of the chadar but while doing so it has not laid emphasis on the features pointed out above. We are accordingly not inclined to accept this piece of evidence.
12. The fourth piece of evidence is the matching of the finger prints. In the first place, the finger prints were not transfer--red to the tape in the presence of any mashir and in the second, Muhammad Yahiya A. S. I. Admits that there were "many thumb---impressions" but that the others were useless and only those transferred were complete. It is rather a matter of sheer chance that only the appellant's finger print impressions could have remained distinct while the others had become indistinct when the vehicle is plied on hire and so many persons use it. What is more significant is that though the specimen finger prints of the appellant were taken on 15th yet till the 23rd December, they were not sent to Hamid Hussain Khan of the Finger Print Bureau and those that were sent on the 17th were of 19 suspect. But this time the appellant had been arrested and almost all the evidence had been collected except the seizure of chador. In the circumstances, there could not be a doubt as to his implication in the crime and it is, therefore, not understandable why simple finger prints of the other 19 suspects should also lie sent for comparison. Besides, nothing has transpired in the evidence to show that anyone else other than the appellant was concerned in the crime. Therefore, this feature again is beset with doubt and it is not possible to accept this evidence, although the trial Court has accepted it with out considering the above defects.
13. The fifth and the last category is the evidence of those witnesses who had seen the appellant with the bag and the contents thereof. Imambux has spoken that the appellant used to visit him in November 1969 and that he used to carry "a hand. Bag" on which the letters 'P. I. A: were written. He has, however, failed to identify that it was the same bag and at the same time has stated that it was one of those type of bags which are commonly available in the market. Muhammad Rafiq's evidence is to the effect that the appellant used to visit him and that he did so on 27th November 1969 and also on 1st December 1969 and that at that time he was wearing a brown leather jacket and a white pant, which had black and white stains which he had cleaned with kerosine. He had also given to himRs. 70 to be kept in deposit with Shaikh Muhammad Rafiq, his employer, which he took back on 8th December 1969. This witness is related to the appellant. He has failed to identify the bag as one that was carried by him. Mushtaq merely refers to his visit to his shop on account of his (Mushtaq; friendship with Muhammad Rafiq. Sardar was employed at the same place where Muhammad Rafiq worked. Though he has spoken of the fact that the appellant carried a bottle, torch, razor, Capstain cigarette packets and a bag, yet he has not identified these articles as those belonging to the appellant. His evidence more or less is on the same footing as that of Muhammad Rafiq. Shaikh Muhammad Rafiq is the employer of Muhammad Rafiq and he has spoken of the deposit of Rs. 70 with him and of its return to the appellant. The evidence of these witnesses does not establish any incriminating feature and as such cannot advance the case of the prosecution.
14. We have observed from the evidence that no mashir was examined to prove the recovery of the shoulder bag and the other articles from the boot of the car. During the examination of mashir, Munihi, mashirnama (Exh. 24) of the recovery of these articles was proved through him who had nothing to do with it. Besides, the bag and its contents have not been established to belong to the appellant. The mere presence of the cigarette packet with the stamped words "Duty free P. N. Ship" cannot establish that it could only be the appellant who could possess such a packet, for the possibility nevertheless remains that any one else possessing gush a packet may have dropped it.
15. The motive is also obscure. Mst. Firdous has stated in s examination-in-chief that the deceased while leaving the house had taken Rs. 80 from her, which fact she has not stated in her police statement, but she has deposed to it in an attempt to connect this amount which was kept in deposit with Shaikh Muhammad Rafiq possibly to suggest a motive as robbery for the murder. It has not been established by the prosecution that the deceased possessed this amount and accordingly it cannot be connected with the amount kept in deposit with Shaikh Muhammad Rafiq.
There is no suggestion to lead to any other reason for the murder of the deceased.
16. Before the circumstantial evidence can be cumulatively taken to lead to an inference of guilt, it is necessary that all the links should be established beyond reasonable doubt. In the instant case, the scrutiny of the evidence reveals that none of the pieces relied on has been established beyond reasonable doubt. Accordingly it is not possible to sustain conviction. We would accordingly give to the appellant the benefit of doubt and acquit him. The sentence of death is not confirmed and the reference is rejected. While allowing the appeal we would direct that the appellant should be set at liberty forthwith unless required in some other case.