' Appellant Imam-ud-Din alias Bashir was tried by Sessions Judge (South) Karachi, for the offence under section 302, P.P.C., who found him guilty for the said offence and vide judgment dated 19-6- 1990, sentenced him to imprisonment for life and to pay a fine of Rs,40,000 or in default to suffer R.I.
For two years. The fine, if recovered, was to be paid to the legal heirs of deceased Muhammad Shafique as compensation under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. Was, however, extended to appellant while computing the sentence.
2. Mst. Rukhsana, wife of deceased Muhammad Shafique and Mst. Shakeela, wife of appellant Imam-ud-Din are real sisters. Both of them resided with their respective husbands in the house of their father Shabrati, situated in Street No,12, Mehmoodabad, Karachi. There was a dispute between deceased Muhammad Shafique and appellant Imam-ud-Din over the construction of the wall in the house where they resided and it is alleged that on 15-1-1989 at about 1-30 p.m. There was exchange of hot words between them and the appellant who flew into passion took out a carbine from the fold of his trousers in an attempt to kill Muhammad Shafique. On seeing this deceased Muhammad Shafique ran outside to save his life. Complainant Muhammad Rafique, brother of deceased Muhammad Shafique who happened to be present there alongwith Javed and Muhamamd Nadeem tried to capture the appellant, who was, however, successful in firing a shot from his carbine at deceased Muhammad Shafique, who sustained injuries and collapsed. The appellant then bolted away. Muhammad Shafique was being taken to Jinnah Post-Graduate Medical Centre, Karachi, when on the way he breathed his last. Dr. Manzoor Hussain Jalbani, who was duty officer informed Shah Muhammad S.I.P. Of Mehmoodabad Police Station on telephone about the arrival of the dead body of Muhammad Shafique. Shah Muhammad, S.I.P. Made such entry in the station diary and he proceeded (o Jinnah Post-Graduate Medical Centre, Karachi, where he held inquest in respect of deceased Muhammad Shafique in presence of Mashirs Muhammad Rafique and Muhammad Nadeem. The deadbody was then handed over to Dr. Manzoor Hussain Jalbani for post-mortem examination. On the same day at 3-30 p.m. The police officer recorded the statement of Muhammad Rafique under section 154, Cr.P.C. In the hospital, which was subsequently incorporated in 154, Cr.P.C. Book. Khalil-ur-Rehman, S.H.O. Then went to the place of occurrence which was inspected in presence of Mashirs Muhammad Rafique and Javed.
He secured one empty cartridge of .12 bore from the place of Wardat and prepared such memo.
On the same day the police officer arrested the appellant from the bus stop of Mehmoodabad No,6 and recovered one carbine and three live cartridges from his possession. Since the appellant had no valid licence for the same, a separate case under section 13-D of the Arms Ordinance, 1965, was registered against him. The Investigating Officer also recorded 161, Cr.P.C. Statements of the witnesses. The crime weapon and the empty cartridge were then sent to Ballistic Expert for examination and report. After completing the investigation the appellant was sent up to stand trial.
3. At the trial the prosecution examined Shah Muhammad, S.I.P. (P.W.1), Muhammad Rafique (P.W.2).
Mst. Rukhsana (P.W.3), Javed (P.W.4), Muhammad Nadeem (P.W. 5), Muhammad All (P.W. 6), Dr. Manzoor Hussain Jalbani (P.W.7), and Khalil-ur-Rehman, S.H.O. (P.W.8).
4. In his statement recorded under section 342, Cr.P.C., the appellant has denied the case of the prosecution. His defence in his own words is as follows:-- "Mst. Shakila was married to Salahuddin relative of deceased Muhammad Shafique, who was married to Shakila's sister. Salahuddin divorced Mst. Shakila and thereafter I married her through Court. On my marriage her relatives were annoyed with me, hence they have foisted this case against me. I am innocent. The plot in question is in the name of my wifelMst. Shakila. They want to usurp it by implicating me in false case."
5. The appellant has examined himself on oath under section 340(2), Cr.P.C. He, however, did not examine any other witness in his defence.
6. On the assessm ent of evidence available on record, the learned Sessions Judge found the appellant guilty and convicted him accordingly.
7. I have heard Mr. Muhammad Saleh Memon, learned counsel for the appellant and Mr. Aziz-ur- Rehman Shaikh, learned counsel for the State. The latter has not supported the impugned judgment.
8. The evidence against the appellant was three-fold. Firstly, there were the statements of eye- witnesses, namely, Muhammad Rafique (P.W.2), Javed (P.W.4), and Muhammad Nadeem (P.W.5).
Secondly, there was evidence of recovery of crime weapon, which on examination by the Ballistic Expert was found to have been used in this murder. Thirdly, there was the evidence of motive, which has come on record through Mst. Rukhsana (P.W.3), wife of deceased Muhammad Shafique.
9. Admittedly all the three witnesses, namely, Muhammad Rafique (P.W.2), Javed (P.W.4), and Muhammad Nadeem (P.W.5), who claimed to have witnessed the incident are chance witnesses.
Muhammad Rafique (P.W.2), who is brother of deceased Muhammad Shafique resided in Shah Faisal Colony at a distance of about 12 miles from the place of Wardat. Javed (P.W.4), a relative of deceased Muhammad Shafique is a resident of Hyderabad (Sindh) and he happened to be present at Karachi during the days when this incident took place. Muhammad Nadeem (P.W.5) is a friend of complainant Muhammad Rafique (P.W.2), and Javed (P.W.4) and had taken them to the house of deceased Muhammad Shafique in his pick-up when he claimed to have witnessed the B incident. Out of these witnesses Javed (P.W.4) has not supported the case of the prosecution and has testified as follows:--- "On 15-1-1988, I was at the house of my sister-in-law in Block No,5 of Shah Faisal Colony. At about 3 p.m. Of that date my sister came and informed me that Shafique was injured by a bullet in Mehmoodabad. Accordingly, I alongwith my sister and others came to Mehmoodabad. When I reached at the house of Shafique in Mehmoodabad, I saw lot of police persons present there. Police inquired about me and I informed that I am maternal-uncle of Shafique. I inquired from police about the whereabouts of Shafique but I was informed that he was in the hospital..."
10. No doubt this witness was declared as hostile witness, but he cannot be treated as hostile merely because his evidence is favourable to the accused. The correct position of law is that either party may rely upon the evidence of such a witness and the Court can come to its own conclusion after consideration of the whole of the evidence for what it is worth. It may be noted that Javed (P.W.4) is closely related to deceased Muhammad Shafique and he had no reason to oblige the appellant who was in no way connected to him.
11. The presence of Muhammad Rafique (P.W.2), Javed (P.W.4), and Muhammad Nadeem (P.W.5) at the time of incident is rendered doubtful by the evidence of Muhammad Ali (P.W.6), who is the only independent witness in this case and he had ip fact taken deceased Muhammad Shafique to Jinnah Post-Graduate Medical. Centre, Karachi, after he sustained injuries. The evidence of Muhammad Ali (P.W.6) is self-explanatory and it will be useful to reproduce it in extenso:-- "About the year back at about 1-30 p.m. I was in my house when I heard voice of cries, and came out of the house, I saw that a man was lying injured with fire-arm injury on chest. I did not see anybody running away. Many people had assembled there when we removed the injured in Suzuki pick-up to the hospital. The injured succumbed to his injuries on the way to hospital. I intimated the police at P.P. In Jinnah Hospital. Police had examined me. I know the accused present in Court. He is milk-seller, but I do not remember his name by now. He lives in our Mohalla. I had not seen him on the Wardat. I do not know Muhammad Rafique. The complainant was not previously known to me."
12. This version of Muhammad Ali (P.W.6) gets support from Dr. Manzoor Hussain Jalbani (P.W.7), who has testified in clear terms that Muhammad Ali had brought deceased Muhammad Shafique to the hospital and he had intimated about this fact to Mehmoodabad police. Shah Muhammad S.I.P. (P.W.1) has confirmed this position. He has produced the relevant entry of station diary (Exh.7) which reads as follows:- "At this time Dr. Maznoor Jalbani, M.L.O. Has got recorded on telephone from Jinnah Hospital that: A person, namely, Muhammad Shafique is brought to the Jinnah Hospital in dead condition, from Feroz Cold Drink, Mehmoodabad No,1 by Muhammad Ali son of Abdul Shamim, resident of House No,B-120, Lane No,14, Mehmoodabad No,1.... "
13. The evidence of Muhammad Ali (P.W.6), which is supported by the Medical Officer and the police officer, therefore, destroys the entire case as set up by complainant Muhammad Rafique (P.W.2) in his 154, Cr.P.C. Statement (Exh.11).
14. The learned Sessions Judge has given no weight whatsoever to this important piece of evidence and while relying upon the evidence of Muhammad Rafique (P.W.2), and Muhammad Nadeem (P.W.5) he felt himself to be bound by the decisions of the superior Courts on the question of appreciation of evidence. The rule laid down on legal propositions is useful and binding but the variety of circumstances attending to a criminal case cannot be identical with those in another and, therefore, a judgment in a criminal case on the point of credibility of a witness can hardly serve as a binding decision. The fate of a criminal case depends upon its own facts and the intrinsic worth of the evidence adduced in the case, and not with reference to case-law.
15. In Malik's 'Law relating to Criminal Trials', 1989 Edition, the test of credibility of witnesses was laid down in the following words:- "In assessing and evaluating the evidence of eye-witnesses, the two important considerations are
(1) whether in the circumstances of the case, it was possible for the eye-witnesses to be present at the scene or their explanation for their presence at the scene can be accepted; and (2) whether there is anything inherently improbable or unreliable in their evidence."
16. Applying the above test to the facts of the present case, it appears to me that Muhammad Rafique (P.W.2) and Muhammad Nadeem (P.W.5) had no reason to be present at the place of wardat at the time when the incident took place. The evidence of Muhammad Ali (P.W.6) and the circumstances referred to above eliminate their presence at the relevant time. Dr. Manzoor Hussain Jalbani (P.W.7) had started the post-mortem examination on the dead body of Muhammad Shafique at 5 p.m. And even at that time the dead body was identified by Muhammad Sagheer and Aslam Ali, which means that complainant Muhammad Rafique (P.W.2) and Muhammad Nadeem (P.W.5) had not reached the hospital by that time. The inquest report (Exh.9) and 154, Cr.P.C. Statement (Exh.11) which were allegedly prepared and recorded at 3 p.m. And 3-30 p.m., in presence of these witnesses are thus manipulated ones.
17. Besides the above unnatural aspect of the case, the medical evidence appears to be in conflict with the ocular testimony consisting of Muhammad Rafique (P.W.2), and Muhammad Nadeem (P.W.5). According to the case of the prosecution deceased Muhammad Shafique was fired at while the appellant was chasing him. The injury suffered by deceased Muhammad Shafique was, however, caused from front side and the burnt skin around the injury indicates that the shot was fired point blank. No reliance can, therefore, be placed upon such evidence.
18. The 154, Cr.P.C. Statement (Exh.11) which was subsequently incorporated in 154, Cr.P.C. Book is again silent about the empty cartridge of .12 bore lying at the Wardat. Javed (P.W.4) has not supported the recovery of empty cartridge from the place of incident. He has also not testified about the recovery of crime weapon from the possession of the present appellant. In such a situation the evidence of complainant Muhammad Rafique (P.W. 2), who has also acted as Mashir of recoveries is worthy of no credence. It is strange that the police officer was not able to secure any Mashir from the locality.
19. Mst. Rukhsana (P.W.3), who is widow of deceased Muhammad Shafique speaks about the motive of this case. The evidence which has come on record does not show that the wall intervening the rooms of deceased Muhammad Shafique and appellant Imam-ud-Din was being erected. On the contrary the inquest report (Exh. 9) shows that this murder was committed over a dispute of ownership of the house. Even otherwise the 1 evidence of motive alone is not sufficient to bring home the charge of murder.
20. Having regard the above circumstances, I am clear in my mind that the case against the appellant is not free from doubt. The benefit of doubt is, therefore, extended to appellant and he is acquitted. The impugned judgment is set aside, and the appeal is accepted. The appellant who is in custody be released forthwith, if not required in any other case.