IFTIKHAR MUHAMMAD CHAUDHRY, J.-- Barkat Ali son of Mithal has challenged in this appeal order of conviction dated 17.2.1991 passed by Additional Sessions Judge, Usta Muhammad under section 302 PPC whereby he was sentenced to suffer life imprisonment and to pay a fine of Rs. 5000/- and in default of payment of fine, 6 months R.I.
2. Concisely stating the facts of the case are that on 3.6.1989 complainant Rajab Ali who is son of deceased Khawand Bakhsh on hearing report of gun fire came out of his house with his maternal cousin Safdar Ali at about 7.30 P.M. And they went towards place of incident and observed that Khawand Bakhsh is lying dead in the pool of blood near their house, whereas Nadir Hussain was found injured, it was also noticed by the complainant that accused Habibullah and Lawang with other two persons whose names were not known to him, but they were also armed with gunds were running from the place of incident after committing offence, it is further stated that deceased with one Kalimullah and Nadir Hussain was coming back from Usta Muhammad to his house situated in Goth Khawand Bakhsh, when deceased reached near his house accused party committed murder of Khawand Bakhsh and caused injuries to Nadir Hussain.
3. The motive as assigned in the first Information Report is that Anwar Hussain son of Khawand Bakhsh married daughter or Mithal and in exchange Khawand Bakhsh gave his daughter in marriage to Akram who is brother of accused Barkat Ali. After sometime Anwar's wife was taken away by her father Mithal to his home and later on it was alleged that deceased Khawand Bakhsh had illicit relations with his daughter-in-law, as such he is 'Siahkar'.
4. According to FIR (No. 62/89) Ex.P/1-A registered at Usta Muhammad Police Station incident took place at 7.30 P.M. Whereas report was lodged at 8.30 P.M. By Rajab Ali son of Khawand Bakhsh which was recorded by Sub Inspector Abdul Qadir under the instructions of SHO Malik Muhammad Ali.
5. In FIR distance of place of incident was shown as one and half mile. During investigation, the Investigating Officer prepared site inspection note ExP/9-A, he procured blood stained earth beneath the dead body of Khawand Bakhsh and prepared its parcel which is Article 8, and recovery memo Ex.P/9-B, sketch of place of incident was prepared as Ex. P9/-C and inquest report Ex.P/9- D. Injured Nadir Hussain was sent to civil hospital, Usta Muhammad for treatment and dead body of Khawand Bakhsh was sent to civil hospital for post mortem. Statements of witnesses were recorded, investigating officer took into possession clothes of Nadir Hussain as Article 1 and 2 in pursuance of inventory Ex.P/5-A.
6. On 4.6.1989 in presence of witnesses clothes of deceased Articles 4, 5 and 6 were taken into possession vide memo Ex.P/6-A in the meanwhile investigating officer received secret information that Barkat Ali is admitted in the Rajpootana Civil Hospital, Hyderabad, as such he arrested him and accused Habibullah from there on 14.6.1989 whereas on 26.6.1989 accused Akram was arrested. On 28.6.1989 at the instance and pointation of accused Habibullah shot gun Article 3 was recovered from his house which was taken into custody vide memo Ex.P/5-B. Similarly at the instance of accused Barkat Ali a knife Article 7 was recovered from a plot situated near house of Habibullah which was taken into possession vide memo Ex.P/7. The blood stained earth and blood stained clothes and knife were sent to chemical examiner whose report was produced in court as Ex.P/9. After completion of investigation accused were challaned in the court of Additional Sessions Judge, Usta Muhammad.
7. The trial court framed charge against the appellant, and accused Habibullah son of Ali Bakhsh and Muhammad Akram son of Mithal, under section 302/307/148/149 PPC. As all the accused did not plead guilty, therefore, after recording prosecution evidence as well as statements of accused in accordance with law, Barkat Ali was found guilty of an offence under section 302 PPC, as such he was convicted by means of impugned judgment, whereas co- accused Habibullah and Akram were acquitted of the charge.
8. The prosecution examined PW-Rajab Ali who is complainant in the case. He reached at the place of incident on hearing of report of gun shot. He lodged FIR. It is pertinent to mention here that the name of accused Barkat Ali was not mentioned therein. However, in court while giving statement on oath he stated that he was Habibullah, Akram and Barkat Ali alongwith two other persons who were running away from the place of incident. In cross examination the witness stated that he reached at the place of occurrence and saw that Nadir Hussain was in his senses and he told him the names of Habibullah, Akram and Barkat Ali and also told that he could not identify the remaining two accused persons. The witness took injured Nadir Hussain to civil hospital, but the hospital authorities did not admit him on account of the fact that he was seriously injured and they were unable to provide him proper treatment, then he went to police station to. Obtain a chit in order to take him to Larkana for treatment. The witness further stated that he came back to the place of 'Ja-i-Wardat' on the same night. The witness further admitted that when he lodged FIR he had mentioned the names of accused Habibullah, Muhammad Akram and Barkat Ali, and when he was confronted with FIR it was found that only name of Habibullah was mentioned. The witness further admitted that in fact accused Lawang and Allah Dinna were not present at the place of occurrence but he implicated them at the advice of police and his elders, these persons were involved so that they may disclose the name of real culprits. The witness stated that in FIR he mentioned that Barkat Ali was armed with knife while others were armed with guns, Akram and Barkat Ali are known to him prior to this incident.
9. PW-2 Nadir Hussain. According to his version on the day of incident he alongwith Kalimullah and Khawand Bakhsh was coming to his house and when they reached near house of accused, Barkat Ali gave them "Lalkara and all the accused caught hold of deceased Khawand Bakhsh and accused Barkat Ali caused injury to deceased with knife.
10. In cross examination he stated that he has seen with his own eyes that deceased Khawand Bakhsh sustained three injuries of knife. Whereas he himself sustained shot gun injuries. He further stated that when Rajab Ali reached the place of occurrence he told him that he saw with his own eyes Barkat Ali inflicting knife injuries to deceased Khawand Bakhsh, witness further confirmed that at the time of lodging FIR by Rajab Ali he was present there and heard complainant whatever was told to police about the incident.
11. According to him Rajab Ali told the police that Barkat Ali inflicted knife injuries to deceased and accused Akram caused injuries by firing. He denied the suggestion that he has not seen with his own eyes that accused Barkat Ali was inflicting injuries to deceased Khawand Bakhsh with knife.
12. PW-3. Dr. Abdul Rahim, on 3.6.1989 he was posted as Medical Officer at civil hospital, Usta Muhammad the dead body ef deceased Khawand Bakhsh was brought there for post mortem. The witness noticed the following injuries on dead body of Khawand Bakhsh:- EXTERNAL INJURIES:
1. One stab (penetrating) wound 5-6 intercastal space 1" x 1/4 x 4" deep.
INTERNAL INJURIES: Thorax left side wall incised.
Heart damaged/incised.
Blood vessels incised at the side of injury Abdown: healthy.
Stomach: empty.
13. According to opinion of Dr. Abdul Rahman death was caused due to injuries on vital organs and wounds were ante mortem in nature and homicidal in character, appeared to have been caused by pointed weapon. Post mortem report is Ex.P/3-A. The witness also examined the injuries of Nadir Hussain and noticed certain injuries on his person. The Doctor issued post mortem certificate.
14. PW-4 Miran Bakhsh is brother of deceased Khawand Bakhsh and on the day of incident he had gone to Koba Saeed Khan and returned back to Usta Muhammad by train in the morning at 7.30 A.M. And when he reached Bus Stand, he saw accused Habibullah, Akram, Barkat Ali and Lawang alongwith another person and they were running on Bagtel Road towards outside the city and accused Habibullah, Lawang and Akram were armed with shot guns whereas Barkat Ali was having a knife in his hand and fifth one had a gun with him and when he reached house, he came to know that his brother has been murdered and Nadir Hussain is injured.
15. In cross examination witness clarified that he has seen the accused persons at Bagtel Road near Bus Stand, Usta Muhammad at about 8.00 P.M. In the night. He further stated that he reached his house at 8.15 P.M. At night. The witness further stated that when Nadir Hussain was discharged from Larkana Hospital, he alongwith Nadir Hussain came to Usta Muhammad Police Station where he got recorded his statement. The witness did not admit that he had stated in the police station that at the time of running of accused, they were empty- handed, and when confronted with his previous statement it was found that he had stated so. In re-examination he certified that he had stated that he reached the place of incident at 7.30 P.M. In the night.
16. The witness in his statement recorded in vernacular also confirmed that he reached Usta Muhammad from Shahdad Kot at 7.30 A.M.
17. It is pertinent to mention here that the statement of this witness was recorded by police after considerable delay.
18. PW-5 is Khan Beg. In his presence blood stained clothes of injured Nadir Hussain were taken into possession by the police vide inventory Ex.P/5-A. He is also witness of recovery of shot gun which was recovered on the pointation of accused Habibullah.
19. PW-6 is Hazoor Bakhsh. In his presence Medical Officer, Civil Hospital, Usta Muhammad produced the clothes of deceased Khawand Bakhsh to Sub Inspector of Police who took into possession after preparing investory etc.
20. PW-7 Muhammad Javed is witness of recovery of knife on the pointation of accused Barkat Ali.
According to his version on 29.6.1989 accused Barkat Ali by digging earth of a plot situated near the house, took out knife and presented the same to police.
21. PW-8 Malik Muhammad Ali is Inspector of Police. On the day of incident FIR No. 62/89 Ex.8-A was recorded under his instructions.
22. PW-9 Abdul Qadir, SHO, is investigating officer who conducted investigation, made recoveries of incriminating articles, details whereof has been given in above paras.
23. In cross examination he admitted that whatever complainant Rajab Ali stated to him it was recorded in FIR and thereafter FIR was read over to the complainant who admitted that the contents of the same were correct and signed the FIR. He also admitted that complainant stated in FIR that he alongwith Safdar Ali and Kalim Ullah saw there Habibullah, Lawang and Allah Dinna armed with shot guns alongwith two unknown persons. The witness admitted that the complainant did not mention the name of accused Barkat Ali and Akram that they were seen at the spot. The witness also stated that in FIR complainant did not mention that he alongwith Safdar Ali and Kalimullah saw accused firing over injured or causing knife injuries to deceased Khawand Bakhsh.
The witness further admitted PW-Nadir Hussain stated in police statement that five accused were armed with guns. According to this witness, PW-Miran Bakhsh had not stated that accused Barkat Ali was having a knife with him. He confirmed that it is correct that PW-Miran Bakhsh had stated in police statement that accused Barkat Ali and Akram were empty-handed.
24. Accused Barkat Ali in his 342 Cr.P.C, statement denied the allegation, whereas in his statement on oath under section 340(2) Cr.P.C. He also did not admit the liability of commission of offence. No defence witness was produced.
25. Mr. Muhammad Shafi Rakhshani, learned Advocate appearing in support of appeal contended:-
(i) That FIR was lodged with delay of one hour and no explanation has been offered by SHO for registering the case with this much inordinate delay which creates doubt on the case of prosecution. Mr. Rakhshani argued that in fact FIR was lodged on next day because complainant Rajab Ali stated that he went to police station at 2.00 A.M. On 4.6.1989.
(ii) The motive assigned by prosecution is not believable because about two months prior to incident wife of brother of complainant Anwar Hussain who is sister of Barkat Ali was taken by her father Mithal to his home and no untoward incident took place between parties therefore, after lapse of two months there was no occasion to impute allegation of 'Siakari' to Khawand Bakhsh, as such motive is not believable.
(iii) That in fact case of murder of Khawand Bakhsh is un-witnessed incident, as in FIR Rajab Ali stated that he came to place of incident after hearing of gun report and saw that Khawand Bakhsh was lying in pool of blood and accused persons were armed with guns and were running away.
(iv) The names of accused Barkat Ali and Akram were not mentioned in FIR nor any overt act was attributed to them. Similarly Nadir Hussain made improvement in his statement in the court because under section 161 Cr.P.C, statement he has not named Barkat Ali.
(v) The learned Judge in mis-exercise of jurisdiction has believed the statement of PW-Miran Bakhsh because he made his statement before police after 36 days of incident and no explanation was offered for this inordinate delay, in recording his statement.
(vi) The witnesses are interested, therefore, their statements are not worthy of credence.
(vii) There is material inconsistency and contradiction and improvements in statement of prosecution witnesses as such, Barkat Ali is entitled for benefit of doubt.
(viii) The court has disbelieved the version of prosecution in respect of accused Akram and Habibullah, but same set of evidence has been believed against accused Barkat Ali and according to criminal administration of justice, the witnesses can not be believed against the present appellant.
(xi) The accused Barkat Ali has been wrongly involved in the commission of offence and role assigned to him is not believable, because there were five persons armed with shot guns and instead of killing deceased with fire arms, why should they kill him with knife.
(x) The recovery of knife has also not been proved by prosecution in accordance with law. The accused was arrested on 14.6.89 whereas on the last date of police remand, recovery of knife was shown at his instance.
On the other hand learned Assistant Advocate General, Mr. Salahuddin Mengal argued:-
(1) That there is no delay in lodging of FIR, so much so the defence counsel had not put a single question in this behalf to SHO, therefore, at this stage this objection appears to be after-thought.
(2) The prosecution has fully established the motive as alleged in FIR.
(3) The murder of Khawand Bakhsh was witnessed by PW- Rajab Ali and PW-Nadir Hussain, therefore, it is absolutely incorrect to contend that no one has witnessed the incident.
(4) The name of accused Barkat Ali though has been omitted in FIR, but in statement on oath witness Rajab Ali has fully implicated him in the commission of offence and there is no improvement in testimony of complainant or PW-Nadir Hussain.
(5) The witness Miran Bakhsh had offered explanation1 for not making statement immediately after incident because he has gone to Larkana with injured Nadir Hussain for his treatment.
(6) The witnesses are not interested, they are honest and natural and whatever they saw, they have stated in their depositions.
(7) There is no material inconsistency or contradiction in the case of prosecution.
(8) The trial court disbelieved prosecution evidence against the accused Akram and Habibullah because they had not caused injury to deceased with sharp weapon, therefore, benefit of doubt was extended to them. There is over-whelming evidence against accused Barrkat Ali to prove guilt, his conviction is in accordance with law.
(9) The accused was involved and convicted by trial court in accordance with law.
(10) There is no hard and fast rule for desbelievering the recovery of weapon of crime if it has been effected on the last date of police remand.
26. As prosecution has established quilt of offence against appellant, therefore appeal may be dismissed and order/conviction recorded by Additional Sessions Judge may be upheld.
27. We have heard the arguments of learned counsel appearing for parties and record of case has also been perused minutely.
28. Now firstly taking up point of delay in lodging FIR, it is suffice to observe that no explanation was asked from investigation officer PW- Abdul Qadir for recording FIR with delay of one hour. Even otherwise contents of FIR indicate that police station is situated at a distance of 1h miles from the place of incident, the evidence of prosecution further reveals that injured Nadir Hussain was removed to hospital for treatment by complainant himself and when hospital authorities refused to admit the injured in the hospital, perhaps then complainant had gone to police station and he lodged report. Even otherwise delay per se in lodging FIR is not sufficient ground to cast doubt on prosecution case.
29. According to prosecution, motive for causing murder of Khawand Bakhsh was that deceased had illicit relations with his daughter-in-law who is wife of Anwar Hussain son of Khawand Bakhsh and as she was taken to her house by her father Mithal about two months prior to incident, therefore, on account of Siakhari murder was committed, but there is no strong evidence to believe the motive because when she went with her father, at that time no untoward incident occurred, therefore, on the basis of evidence available on record motive appears to be remote and prosecution has failed to establish the same.
The perusal of statement of PW-1 Rajab Ali indicates that he was in his house at the time of incident and on hearing gun shot report he went towards the place of incident with Safdar Ali and when they both reached there, it was found that Khawand Bakhsh is lying dead in pool of blood, whereas Nadir Hussain was injured. It means that before reaching of complainant at the place of incident, accused persons had already committed murder of Khawand Bakhsh and witness has not seen that how murder had taken place. In FIR Ex.p/1-A it was not mentioned that accused Barkat Ali was present at the place of incident and he was inflicting injuries with knife on deceased Khawand Bakhsh, rather it was stated that co-accused Habibullah and Lawang and Allah Dinna were found running armed with guns alongwith two other persons who were also armed with guns, their names are not known to him, but he stated that if they come before him, he can identify them.
30. Keeping in view the statement of facts mentioned in FIR and the statement of Rajab Ali recorded in court it becomes clear that witness had made important improvement in his testimony, as in the court he stated that at the time of incident he was accused Habibullah, Akram and Barkat Ali with two other persons running away from the place of incident.
31. It may be mentioned here that even in deposition witness has not assigned any role to Barkat Ali except that he was running away from the place of occurrence with other persons. There is another glaring improvement, in his statement i.e. He has stated that four accused were having shot guns with them while accused Barkat Ali was having a knife with him, whereas in FIR it was stated that all the five accused persons had shot guns with them. It is not the case of prosecution that FIR was not read over to accused or he had made ommission in mentioning the name of accused Barkat Ali who allegedly caused injuries with knife to deceased.. The witness admits in the court that FIR was read over to him and he has signed the same.
32. In cross examination the witness stated that when he reached at the place of incident PW-Nadir Hussain was in his senses and he told him the names of accused Habibullah, Akram and Barkat Ali.
Question arises as to why the name of Barkat Ali was not mentioned in FIR. The witness also makes another important admission in cross examination i.e. That he had mentioned the name of accused Habibullah, Lawang and Allah Dinna in FIR at the advice of police and his elders and their names were mentioned so that they may disclose the name of real culprit which means that the names of Lawang and Allah Dinna were mentioned falsely and complainant did not identify the real culprits involved in the commission of offence. The accused Barkat is not stranger to the complainant and Nadir Hussain as they are inter se related to each other.
33. At the time of registration of case when FIR was recorded Nadir Hussain was present in police station. This fact is confirmed by complainant as well as Nadir Hussain himself in his deposition before the court. This witness further stated that Nadir Hussain has disclosed the names of Habibullah, Akram and Barkat Ali as accused in the present case. In this behalf the statement of Nadir Hussain is important because at the time of commission of offence he received injuries of shot gun when he was coming to his house with Khawand Bakhsh and one Kalimullah. The witness in his deposition mentioned that all the accused caught hold of deceased Khawand Bakhsh and accused Barkat Ali inflicted injuries with knife on his person whereas accused Akram caused injuries to him by firing with shot gun at his abdomen, this witness further stated that on shot gun report Safdar and Rajab Ali also reached at the place of incident and accused started running towards east and Barkat Ali had knife with him and others were having guns with them. In cross examination witness stated that Khawand Bakhsh sustained three knife injuries whereas PW-Dr. Abdul Rahim stated that there was one stab wound between 5-6 intercastal 1 "x1/4 'x4" deep. It means that version of Nadir Hussain contradicts the medical evidence because in cross examination he stated that he saw that accused Barkat Ali inflicted knife injuries to deceased Khawand Bakhsh, he further urged that at the time of lodging FIR by Rajab Ali he was present there with Complainant and whatever was told by complainant to police, he was hearing and Rajab Ali told the police in his presence that accused Barkat Ali inflicted knife injuries to deceased Khawand Bakhsh and accused Akram caused injuries by firing, but this fact does not find place in FIR which means that depositions of PW-Rajab Ali and Nadir Hussain suffer from material inconsistencies and contradictions, as such without independent corroboration is not worthy of credence.
34. The trial court disbelieved the version of PW-Rajab Ali and Nadir Hussain against accused Habibullah and Akram, but had believed same set of evidence against present appellant, therefore, in view of the principle of indivisibility of credibility it is to be seen whether statement of these two witnesses can be considered against Barkat Ali for sustaining conviction.
35. Previously as a Rule of Convenience it was settled that when there is discrepancies in the statements recorded by police and court, the credibility of such witness will not be accepted against one and rejected against others, but owing to an exception to the Rule, it was declared by Hon'ble Supreme Court that if court comes to a conclusion that witness is involving one accused falsely, it would not be safe to rely on his testimony unless same is corroborated by other evidence.
In this behalf reliance is placed on case of "Ghulam Sikandar and another Vs. Mamataz Khan and others" reported in PLD 1985 Supreme Court page 11. The operative portion being instructive is reproduced below: - "It is often said that the principle falsus in uno falsus in amnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently, namely, that the testimony of an eyewitness should not be treated as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be iretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad V. Crown (I) propounded by late Chief Justice Muhammad Munir that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused."
36. In view of dictum laid down in the aforementioned judgment, it is to be seen whether in the instant case there is any other strong corroborative evidence available on record for warranting conviction against accused Barkat Ali qn the strength of testimony of Rajab Ali and Nadir Hussain.
37. The next witness of prosecution is PW-Miran Bakhsh who is brother and deceased Khawand Bakhsh, according to his version he came from Shahdad Kot at about 7.30 A.M. And he saw accused Barkat Ali running with knife in his hand, whereas other accused had shot guns. In re- examination an attempt has been made to clarify that he reached Usta Muhammad i.e. Bagtel Road Bus Stand at 7.30 P.M., but in his statement recorded in vernacular, it is clearly mentioned that he reached there at 7.30 P.M. Even otherwise, the witness was examined by prosecution after 36 days after incident and explanation offered by him is that he had gone to Larkana for treatment of Nadir Hussain, such explanation is not worthy of acceptance and under the circumstances reliability of witness is not free from doubt. In this behalf reliance can be placed on case of"Muhammad Iqbal Vs. State" reported in 1984 SCM R P. 930 and "Bashir Ahmed-Appellant Vs. State reported in 1985 PCr.LJ, page 1987.
38. The next piece of evidence is medical evidence. According to Dr. Abdul Rahim there was only one stab penetrating wound, whereas witness Nadir Hussain stated the deceased Khawand Bakhsh sustained three knife injuries, as such this piece of evidence can also not be used as corroborative piece of evidence against appellant.'
39. There is another incriminating evidence against accused i.e. Recovery of knife. Although knife was recovered on 11th day after the arrest of Barkat Ali from a plot situated near the house of Habibullah According to prosecution, accused had himself led the police for the recovery of knife and knife was found blood stained, it may be seen that accused allegedly led the police for recovery of knife on 11th day of his arrest. According to chemical analyser report Ex.p/9 the knife Article-7 was stained with human blood, whereas PW-Rajab Ali in his" deposition stated before court that police remained on Ja-i-Wardat for about 1-1/2 hour and police took blood stained earth and secured knife etc from the place of incident and then returned to police station. It is not understandable that if police has secured knife i.e. Weapon of offence at the place of occurrence then how knife was recovered at the pointation of accused Barkat Ali after his arrest, the investigating officer has also not offered any explanation in this behalf. Similarly it is not believable that accused who made his escape good from the place of incident, would keep under his control blood stained knife for a long period, as such, recovery of knife is also not believable under the circumstances mentioned above.
40. The prosecution story even otherwise appears to be doubtful because if it is believed that all the accused were armed with guns then instead o causing murder of deceased with fire arm why knife was used for this purpose, this leads us to conclude that real culprits have made their escape good and the prosecution subsequently involved appellant and other persons in the commission of offence. Admittedly accused Barkat Ali was arrested from Rajpootana Hospital, Hyderabad on 14.6.1989, but no explanation is coming forward that under what circumstances, accused was admitted in hospital and whether he was injured or not.
41. In view of inconsistencies and discrepancies in statements of prosecution witnesses, there is no independent evidence or circumstance to corroborate statement of PW-Rajab Ali and PW-Nadir Hussain. Hence it is held that prosecution case is full of doubts, as such, benefit of doubt is extended to Barkat Ali. Resultantly the impugned judgment is hereby set aside, and appellant is acquitted of the charge, he may be set at liberty forthwith if not required in any other case.