QAISER AHMED HAMIDI, J: -- Appellant Panjo was tried alongwith accused Mst. Bashiran for the murder of Soomar husband of Mst. Bashiran by learned IIIrd Additional Sessions Judge, Sukkur, who acquitted Mst. Bashiran, but. Found appellant Panjo guilty for the murder of Soomar and vide judgment dated 45-1Y-1989 sentenced him to death, subject to the confirmation by this Court. -tie was. Also sentenced to pay a fine of Rs.15,000 or in default to suffer R.I for three years. The fine, if recovered was to be paid to the legal heirs of deceased Soomar as compensation under section .544-A, Cr.P.C. By this appeal filed under section 410, Cr.P.C. The appellant has challenged his conviction and sentence. The case of the appellant is also before us for the confirmation of death sentence under section 374, Cr.P.C. The appeal and the reference will be disposed of by this judgment.
2. The case of the prosecution as unfolded in F.I.R. Lodged by complainant Khamiso runs as follows: "Deceased Soomar was my real brother who was residing in the same village. He had married with Mst. Bashiran daughter of Khahqdad Chacher about 6 or 7 years back. Panjo son of Wahid Bux Chacher who also resided in the same village had an evil eye upon Mst. Bashiran and he was prevented,, by deceased Soomar from visiting his house. Accused Panjo had, however, threatened him with dire consequences. On the previous,, night at about 4 a.m. I heard the cries of `murder, murder' raised by Mst. Bashiran and I alongwith my uncles Mitho son of Karim Bux and Piran son of Mehmood Chacher went running there. We saw in the light of Chimni (lamp) that Panjo son of Wahid Bux, Nizam son of Gulab and Allah Warayo son of Ali Sher, Chacher were throttling my brother Soomar with their hands, who ran away towards eastern side on our challenge. After a short while Soomar breathed his last. He had finger-marks on his neck, which was swollen. Leaving the witnesses over the dead body 1 went to Rais Parpio son of Sardar Khan Chacher, the Nekmard and apprised him of the facts and on his direction I have come to lodge report. I complain that the above accused have killed my brother Soomar so that accused Panjo may marry Mst. Bashiran:'
3. Ghulam Sarwar A.S.1, Ubauro Police Station recorded the F.I.R on 16-12-1985 at 12-30 p.m. He then inspected the Wardat and despatched the dead body of Soomar for post-mortem examination.
On 19-12-1985, complainant Khamiso made an application to S.S.P., Sukkur in which he disowned the contents of F.I.R. Disclosing the following facts- "On 16-12-1985 my brother Soomar was murdered by accused persons, namely, Mst. Bashiran were of Soomar and Panjo son of Wahid Bux. I had disclosed the names of these accused to police who had arrested accused Panjo, but accused Mst. Bashiran was still not arrested. Since accused Mst.
Bashiran is an influential lady she was let of after two hours of her arrest. I am not satisfied with the investigation. My brother was murdered without any fault. I pray, that investigation be carried out properly and Mst. Bashiran be arrested:"
4.The perusal of the police record shows that on 25-12-1985, 161, Cr.P.C statements of Pirandino, Parpio and Mitho were recorded and thereafter accused Nizam and Allah Warayo who were nominated in F.I.R. As accused were let of and instead Mst. Bashiran who was examined as a prosecution witness on 16-12-1985 was joined as an accused person. After usual investigation both Panjo and Mst. Bashiran were sent up to stand trial.
5. The appellant pleaded not guilty to the charge when read out to him in Court and wanted to be tried. At the trial the prosecution examined Khamiso (P.W.1), Mitho (P.W.2), Pirandino (P.W.3), Rasool Bux (P.W.4), Abdul Karim Tapedar (P.VV.5), Illahi Bux P.C. (P.W.6), Parpio (P.W.7), Dr. Hassan Shah (P.W.8), and Rasool Bux, Mukhtarkar (P.W.9). On 23-8-1989, the side of the prosecution was closed without examining the Investigating Officer.
6. The appellant met the charge with a bare denial professing innocence. He did not put himself in the witness-box, but examined Allahyar (D.W.1) in his defence.
7. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellant guilty for the offence under section 302, P.P.C. And convicted him accordingly.
8. The fact that deceased Soomar died.An unnatural death is not disputed. Dr. Hassan Shah (P.W.8) who had conducted the autopsy on the dead body of Soomar has opined that the cause of death was asphyxia consequent upon injuries caused by throttling.
9. The case of the prosecution rests upon the following items of evidence: (i)Direct testimony consisting of Khamiso (P.W.1), Mitho (P.W.2), and Pirandino (P.W.3)
(ii)Corroborative evidence of Parpio (P.W.7) who was apprised of the incident by complainant Khamiso.
(i.e)Motive.
10. Complainant Khamiso (P.W.1) has claimed to be an eye-witness in this case. He has testified that on the relevant night at about 4 a.m. He had gone to the house of deceased Soomar alongwith P.Ws Mitho and Pirandino when they found accused Mst. Bashiran were of Soomar (since acquitted) holding the arms of her husband and the present appellant throttling him to death, who were identified in the light of CHIMNI (lamp). According to him he alongwith Mitho and Pirandino reached the house of deceased Soomar on hearing his voice. Quite admittedly the incident took place in the month of December (winter season) inside the room of the house at 4 a.m. Khamiso (P.W.1) has also admitted that he resides at a distance of about 50 or 60 paces from the house of deceased Soomar. Deceased Soomar was throttled to death while he was in sound slumber. It was, therefore, not possible for him to even utter a word. The FIX (Exh.Ll) which was lodged after 8-1/2 hours of the incident after due deliberation, however, gives a completely different story and a different set of accused persons. The complainant has disowned the facts as disclosed by him in F.I.R. (Exh.11), but his own witness Parpio (P.7) has contradicted him in this respect by stating: "I am Nekmard of our community. At the time of incident I was present in my house in village Hamid Chacher. At breakfast time complainant came and informed me that deceased Soomar was murdered by Nizam, Allah Warayo and Panjo during night time:"
11. Besides various infirmities in the evidence of complainant Khamiso (P.W.1), which we will discuss at the proper time, the reasons disclosed by him for the presence at the place of occurrence at that add hour do not appeal to us. Since he is real brother of deceased Soomar he has tried to implicate the possible suspects and in doing so he even disowned his own F.I.R. (Exh.11).
1.2. Mitho (P.W.2) is admittedly an uncle of deceased Soomar. According to the case, which has been developed during the course of trial he is the star witness of the prosecution and his evidence seems to have weighed considerably with the trial Court. He claims to be an eye-witness in this case and in order to justify his presence he has come out with the following story: "About one month or 1-1/2 month before this incident deceased Soomar complained us that accused Panjo was on illicit intimacy with his were accused Mst. Bashiran. He also informed me that on this accused Panjo was annoyed with him. I was keeping watch over the illicit intimacy between the accused present in Court and on the night of incident it was 4 a.m, I went to the house of deceased Soomar where a Chimm was burning and in the light of the same I found accused Mst. Bashiran catching hold of the arms of deceased Soomar (who) was sleeping on cot and accused Panjo was sitting on the chest of the deceased and was pressing his neck. Complainant Khamiso and Pirandino subsequently followed me and came to the wardat and they also saw the incident. Accused Panjo then ran away, whereas accused Bashiran concealed herself within the vicinity ...."
13. During the course of investigation Mitho was examined for the first time on 25-12-1985, after nine days of incident, why nobody knows. His statement under section 164, Cr.P.C. Was recorded on 2-1- 1986, in which he had come out with a different version by claiming himself to be the only eye- witness in this case, which is evident from the following extract: "After that I was guarding the house of deceased Soomar. On 16-12-1985 at about 4 a.m when I entered the house of Soomar and saw that deceased Soomar was on the cot and upon his chest Panjo was sitting and he has strangulated him and his were Mst. Bashiran has captured the arms of deceased Soomar. I raised cries on which P.Ws. Pirandino and Khamiso Chacher came running and I disclosed to them the above facts:"
14. The arrival of this witness at 4 a.m in a cold night for no obvious reasons at the very moment when deceased Soomar, was throttled to death is a pretext which is always to be found in the mouth of a witness who introduces himself as an eye-witness. Since he is uncle of deceased Soomar it, therefore, does not require much of calculation how to multiply 2 by 2.
15. Pirandino (P.W.3) who is uncle of deceased Soomar was attracted on cries raised by P.W. Mitho.
He rushed to the wardat and found Soomar lying dead. He also found appellant Panjo running away. According to his version complainant Khamiso came afterwards followed by other villagers, who then went to lodge F.I.R.
16. Admittedly,, both these witnesses were examined by police on 25-12-1985 nine days after the incident. There is nothing on record to even faintly suggest that they were not available during this period. Under these circumstances the veracity of these witnesses is open to doubt. The observations made by a Division Bench of this Court in the case of Oabil Shah and others v The State, reported in PLD 1960 Kar. 697, may be borrowed, which are as follows: "The fact that they did not come forward as witnesses until the 9th January. 1958, leads us to suspect the veracity of these witnesses. We have gone through the evidence and we find that we cannot trust their testimony that they saw the incident:"
It may be recalled that the witnesses,, who were not believed in that case were examined by the police after 48 hours of the occurrence.
17. In Budho v. The State, reported in PLD 1965 Karachi 76, the witnesses who were examined after four days of the incident were not found worthy of credence by a Division Bench of this Court.
18. In the case of Sahib Gul v. Ziarat Gul and others, reported in 1976 SCM R 236, one of the reasons for disbelieving an eye, witness was his delayed examination by the police.
19. Though we have certainly no wish to make it a rule that a witness, if k, examined by the police after a delay of few days should invariably be disbelieved, but this factor when examined together with other circumstances attending to a case may finally determine a certain question of fact.
Keeping in view -the circumstances leading to the involvement of the appellant, we do not consider these witnesses as worthy of any credence.
20. The mashirnama of wardat (Exh.17) and the sketch of wardat (Exh.22) prepared by Abdul Karim Tapedar (P.W.5) again indicate that there was only one door in the room where deceased Soomar was throttled to death. All the three witnesses, namely, Khamiso (P.W.1), Mitho (P.W.2) and Pirandino (P.W.3) who claimed to have reached to that room at the time of incident arc, however, silent about the manner in which the appellant has escaped, who admittedly was unarmed. They could not have allowed the appellant to escape if they has reached to the place of occurrence at the time of incident. Let us repeat again that there was only one entrance for the room where this murder took place.
21. The probability of the facts disposed to in one of the most important considerations in judging the worth of the evidence of eye-witnesses. If the witnesses come forward with unbelievable stories, which are on their face incredible, then the evidence of such witnesses should be ruled out as tissue of lies not deserving any notice.
22. The prosecution has also tried to get support from the evidence of Parpio (P.W.7) the Nekmard of the community. His evidence in no way improves the case of the prosecution. On the contrary Parpio (P.W.7) contradicts complainant Khamiso by stating that Khamiso had informed him that deceased Soomar was murdered by Nizam, Allah Warayo and the present appellant and this was in fact the version of Khamiso disclosed m F.I.R. The evidence of Parpio (P.W.7) further shows that complainant Khamiso had not disclosed to him about the manner in which Soomar was done to death. This admission lends support to the contention raised on behalf of appellant that it was an un-witnessed crime, otherwise in ordinary course of human conduct complainant Khamiso would have disclosed all the facts leading to the murder of his brother, to his Nekmard. This factors also explains the delay of 8-1/2 hours in lodging the F.I.R., when the wardat is only 7 Km. From Ubauro Police Station. Obviously this time was consumed in consulting the witnesses and concocting a false story.
23. The evidence of motive has again come on record through the mouth of Khamiso (P.W.I), Mitho (P.W.2), and Pirandino (P.W.3), who have already been disbelieved by us. Parpio (P.W.7) who is the Nekmard of the community has not supported the case of the prosecution to this effect. The version of complainant Khamiso (P.W.1) and his witnesses about the illicit intimacy of appellant with co---accused Mst. Bashiran (since acquitted) again appears to be unnatural. Deceased Soomar would not have allowed co-accused Mst. Bashiran to stay m his house, if in fact he had any suspicion. Bearing in mind the unfortunate practice of Karo--Kari, we are satisfied that there is no truth in the motive of this case. While considering the corroborative value of motive in the case of Sahib Masih and others v. The State reported in 1982 SCMR 109, their Lordships of the Supreme Court observed: "The motive by itself in a case like this, serves as a double-edged weapon. It could prompt false implication. It could as well prompt revenge in the form of aggression. In determining the intrinsic worth or consistency of the statements of eye-witnesses, the mere presence of motive is not sufficient."
24. On overall appraisement of the entire evidence in the case and on considering all the surrounding circumstances, we are of the view that the prosecution has miserably failed to prove the charge-against the appellant and he is entitled to acquittal.
25. Before we take leave we would like to point out that the learned Additional Sessions Judge in his judgment (which is an excellent model of what a judgment should not be) has sought corroboration from the application made by complainant Khamiso to S.S.P., Sukkur (Exh.12) as if it was th:; F.I.R. It was a second statement of the first informant and could at best be treated as statement under section 161, Cr.P.C. If any authority is needed reliance may be placed upon the case of Ghulam Siddique v. S.H.O Saddar, Dera Ghazi Khan and others, reported in PLD 1979 Lah.
263.
26. It is again unfortunate that the Investigating Officer in this case was not examined and the side of the prosecution was closed on 23-8-1989. The record shows that repeated attempts were made to secure the attendance of the police officer. The secondary evidence could have been produced, if the police officer was not available. The case of the appellant was seriously prejudiced as the omissions and contradictions in the statements of witnesses could not be brought on record. The case,, of A.K.M. Raza and others v. The State, reported in PLD 1958 Dacca 111, is an important judgment on this point. At page 113, a Division Bench of the then High Court of East Pakistan observed as follows: "For the present purpose, it is enough to consider the objection as regards the non-examination of the Investigating Officer. On a reference to the order-sheet in the case, it appears that on 23rd June, 1956, same witnesses were examined and there is a note that Mr. MA Jabbar, S.I. Of Police, was not examined by the prosecution after which the evidence for the prosecution was closed and the order-sheets and the statements of the accused persons in the lower Court were put in under section 28" of the Code of Criminal Procedure. Mr. Hakim had rightly made a grievance that the non-examination of the said Investigating Officer has caused immense prejudice to the appellants inasmuch as he was not available to be questioned as to the statements made to him by the witnesses examined by him. In this connection, he has referred us to Mominuddin Sk. And others v.
Crown 5 D L R 141, a decision to which one of us is a party. It was held that the failure by the prosecution to examine the Investigating Officer deprives the defence of their very valuable right of opportunity of shaking the credit of the prosecution witnesses by bringing out the contradictions between their statements to the police during investigation and their evidence in Court. Such a serious defect cannot be cured by a direction to the jury that they are to make strong presumption against the prosecution on account of the omission. The principle enunciated there would apply to the facts of the present case. It was essential that the Investigating Officer should have been examined to afford an opportunity to the defence to cross-examine him. By reason of his non- examination, the defence case has been prejudiced."
27. This view was followed in the case of Muhammad Sharif and another v. The State, reported in 1972 P Cr. L J 129, wherein the examination of the police officer who had investigated the case was considered necessary. In ordinary course we would have remanded the case for the said purpose, but for the reasons recorded by us in the above paragraphs, it was not considered necessary to do so.
28. In view of the conclusion drawn by us in paragraph 23 ante, we allow the appeal and set aside the conviction recorded against the appellant. The fine, if paid be returned to him. The reference made by learned Additional Sessions Judge, Sukkur is rejected. The appellant who is in custody be released forthwith, if not required in any other case.
29. By a short order dated 25-9-1990, we had allowed the appeal and rejected the reference. These are reasons for the said order.