MUHAMMAD HALEEM, J.-Appellant Haroon Rashid stands convicted under section 302, P. P. C. For the murder of Shah Nawaz and sentenced to death. He was tried and convicted as afore stated by the learned Additional Sessions Judge, Karachi, vide judgment dated 27th November 1973. He leas appealed against his conviction while the learned Additional Sessions Judge has referred his case for the confirmation of death sentence. This judgment will dispose of the appeal and the reference.
2. According to the prosecution case, the incident occurred at 19-30 hours on 5th March 19/3, near the Panshop of Yousuf which is situate is Gali No. 2, Off Burns Road, Karachi. The deceased and his brothers, Mazhar and Sultan, alongwith their father resided in a house in that locality about 15 paces away from the wardat. Mazhar and the deceased saw the T. V. Till 19 hours when Mazhar left as he had to go to Sadar. The deceased also followed him. As he came out Mazhar saw his brother Sultan standing near the Panshop and on reaching the footpath in front of the shop de enquired from Luqman, who is also called Irshad, about his friend Aslam. Just at that moment the appellant, who lived in the same gall and is reputed to be hot-headed, came and exchanged abuses with the deceased, took out a knife from his pant and stabbed the deceased on his chest and thereafter ran towards Gali No. 10. The deceased fell down on the footpath. Both Mazhar and Sultan cried out 'pakro, pakro', but no one could apprehend him. He then lifted his brother and hurriedly took him in a taxi to the Civil Hospital, where he expired after 15 minutes. The incident was said to have been witnessed by others as well, namely Irshad, Yousuf and Jamal. On returning from the hospital Mazhar lodged the F. I. R. At Police Station, Preedy at 20.30 hours the same day which was recorded by Ghulam Rasool S. H. O., who thereafter inspected the wardat and from there went to the hospital and arranged for the post-mortem examination of the deceased. He next examined Sultan, Luqman, Yousuf. Shahid A.I and Irshad. On receiving information that the appellant had left for Sukhur he deputed Head Constable Muhammad Yousuf and Constable Bahadur Khan to apprehend the appellant, in which town he was not found but later on arrested on 8th March 1973, from the platform of Multan Railway Station. No incriminating article was secured from him.
3. The autopsy on the dead body was performed by Dr. Muhammad Umar Khan, who noticed the following injury on his person:- "I Incised wound middle and slightly to the right of lower chest and just below ziphisternal joint oblique in direction ----- x ----- x cavity deep."
Which, according to him, was caused by a sharp-edged weapon, like knife and was sufficient in the ordinary course of nature to cause death. The deceased was also examined while alive by Mr. Muhammad Ramzan who also noticed the same injury.
4. The appellant denied his involvement in the crime and explained his absence from Karachi saying that he had gone to Multan in connection with his gun business and while he was returning from there he learnt about his false implication in the crime. He also admitted that he was arrested from Multan Railway Station and that his brother had accompanied the police party. Lastly, he alleged that he was implicated out of enmity the reason being that he had asked the deceased to desist from "teasing girls of mohalla". He examined Khawaja Muhammad Ramzan who resided in Multan and with whom he had stayed from 2nd March till 8th March 1972, in connection with his business.
5. The conviction of the appellant rests on ocular evidence and his abscondence from Karachi. The trial Court accepted the evidence of Mazhar. As for Sultan it held:- "This witness has materially corroborated the evidence of P. W. Mazhar in all essential particulars."
While giving weight to the ocular testimony of these two witnesses, this is what the learned Judge has observed:- "Besides I do not find contradiction of any material nature which should detract from evidentiary value of these prosecution witnesses. This evidence by itself is sufficient to bring home the charge of murder against the present accused beyond any reasonable doubt."
This is not all. In spite of the weaknesses in the testimony of Irshad, Jamal and Zahid A.I, it held;- "The prosecution has been able to establish the main incident by the evidence of P. We. 3, 4 and 5 who were present at the scene of offence at the time of incident."
The process of reasoning being that the evidence of these P. Ws. Was divi--sible on the footing that in some respect they had implicated the appellant and in another they had "tried to shelter the accused by bringing elements of falsehood in evidence." In the ultimate analysis it came to the con--clusion that it would "accept that part of the evidence of these P. Ws. By which they have implicated the accused in the commission of the offence for the reason that this portion of their evidence is in accord with the evidence of P. Ws. 1 and 2 and that of medical evidence furnished by two doctor." Lastly, the trial Court disbelieved the defence witness and gave due weight to his abscondence from Karachi as a piece of circumstance corroborating the ocular evidence. The trial Court thus recorded conviction as afore stated.
6. We have closely scrutinised the ocular evidence in the case, but we have not found it convincing to form a basis for conviction on a capital charge. The prosecution examined Mazhar and Sultan, brothers of the deceased, Irshad, Jamal and Zahid A.I. In the F. I. R. Yousuf is disclosed as an eye- witness. He was examined before the committal Court but in spite of the evidence of the process server, Aziz Ahmad, who stated that Yousuf had left for Dubai some 8 to 10 months before, his statement was not transferred to the file of the Sessions Court under section 33 of the Evidence Act.
The reason is not far too seek, for it can be safely presumed that he had not supported the prosecution case. Instead one Idris was examined as Court witness at the behest of Sharifur Rehman, father of the deceased, who gave out in the affidavit as under:- "(3) That I say I come to know through my own sources that the accused person deliberately put Muhammad Yousuf as prosecution witness who could be useful to him.
(4) I say that as a matter of fact Muhammad Idris son of Muhammad Qasim was sitting on the shop on behalf of P. W. Muhammad Yousuf who saw the occurrence.
(5) I say that Muhammad Idris is the person who can depose the true fact in the above-noted case."
On the strength of this affidavit the A. P. P. Applied on 20th October 1973, for summoning this witness and the trial Court granted his request. This was after all the eye-witnesses had been examined and his name had not transpired at any stage whatsoever. Even Idris did not support the prosecution case saying that he had not seen the incident as at that time he was not sitting in the Panshop. We are unable to see how Yousuf could be introduced as a witness by the investigating agency when his son himself gave out his name in the F. I. R. And it was the prosecution case that the deceased had purchased a cigarette from that shop. It is a different thing that Yousuf has not supported the prosecution case, but that by itself cannot be a reason for saying that he was introduced during the investigation. Therefore, this reason appears to be absurd. Idris was thus introduced to fill in the gap in the prosecution case, which is nothing short of fabricating; evidence in a serious case of murder. We are constrained to observe that the trial Court exercised the discretion un-judiciously in allowing the examination of this witness. Zahid A.I is not even mentioned in the F. I. R. For whatever worth his evidence is.
7. We will first take up the evidence of the two brothers, namely Mazhar and Sultan. It is rather surprising that Mazhar had disclosed the name of his brother in the F. I. R. But in his evidence before the trial Court he has not mentioned his name though he has stressed about the presence of Irshad and Yousuf Panwalla. It cannot be accidental, for if Mazhar was conscious of the presence of Irshad, how could he leave out his own brother Sultan, about whom he only mentioned that he is his brother. We have given our anxious consideration to the deliberate omission by him of the name and Sultan but we are unable to find any reason why he would do so considering their relationship with the deceased. Again, Mazhar has dis. Closed his presence at the Panshop immediately before the incident, but Sultan has not said about his presence at the Panshop at the time of the incident. In his examination-in-chief he stated that "my brother Mazhar and Luqman, who were present there, carried the deceased in a taxi to the hospital". This is not an unqualified statement, for in his cross-examination he was confronted with his admission in the committal Court deposition which, of course; he denied, which is as under:- "I did state in my 164 statement that after the assailant raft away, thereafter Mazhar, my brother and his friend Irshad alias Luqman came there."
This is not all, for another admission, Exh. 6-B, has also been exhibited. It reads:- ". . . . Whereupon altercation took place between both Shah Nawaz and Haroon. After the altercation, Haroon took out knife from the right pocket and stabbed Shah Nawaz with knife on (his) chest and Shah Nawaz fell down on the footpath. On seeing this. Haroon ran away and the knife remained in the band of Haroon and (he) fled away. Thereafter, Mazhar, who is my brother, came there and alongwith him Irshad Ahmad alias Luqman came and took that Shah Nawaz to the Civil Hospital In a vehicle." (This extract is not on the record but has been reproduced in English from his 164 statement).
From the above, it is manifest that Sultan on his part has excluded the presence of both Mazhar and Irshad at the time of the incident. Why he did so, is again not apparent to us considering the background that the F. I. R. Must have been lodged after mutual consultation and ordinarily Mazhar and Sultan should have disclosed the presence of the other but they have refrained from doing so.
The probability is that they have dis--honestly excluded the presence of the other but in that eventuality ft remains to be considered whether in spite of it their presence should be accepted, of which corroboration is also lacking from the testimony of the other witnesses examined in the case.
P. W. Irshad while disclosing the presence of Mazhar has not mentioned the name of Sultan but this disclosure also is qualified. In the first instance, he stated that he gave his statement under 164 "at the instance of the father of the deceased" and later on in cross-examination he admitted that it was his father who had related to him the incident and that he gave his statement because he was threatened that if he did not implicate the appellant he would himself be involved, and it was, therefore, that he had deposed. In the face of this disclosure it leaves room for doubt as to whether the presence of Mazhar can be accepted when Irshad himself on his own showing stands out as a false witness. Jamal has not said a word about the presence of either Mazhar or Sultan or Irshad.
Zahid A.I has also not mentioned them. Commulatively therefore the effect of all this is that it is not possible to accept with certainty the presence of either Mazhar or Sultan at the time of incident.
8. A scrutiny of the cross-examination of Sultan shows that he has resiled on many points from his committal Court deposition and his state--ment recorded under section 164, which also does not add weight to his credibility. Another feature which has been suppressed is that there was exchange of abuses and having regard to the location of the injury which was a puncture in the left lower lobe of lung, the possibility of grappling cannot be excluded, for such an injury can reasonably be caused while in a lent position. If we were to accept that the appellant caused the injury straightaway then it would have been on the upper part of the chest. In the F. I. R. There is reference to reciprocal abuses, but none of the witnesses has said so in their deposition at the trial and so has grappling been avoided, which go to reduce the credibility of their version as it is sought to be changed at the trial so as to make out a case of simple murder.
9. Irshad being disinterested was a most important witness as his case also transpires in the F. I. R.; nonetheless he wriggled out from his earlier stand by saying that he was pressurised to give his 164 statement in the case and thus neutralised his evidence in the examination-in-chief in the context of his admissions in the cross-examination which are reproduced as under:- "There are many persons living in that Mohalla by the name of Haroon. I am also called as Haroon. I have (sic) seen the incident but it was related to me by the father of the deceased, I know the father of the deceased who is present in Court. I was afraid and was threatened by the father of the deceased that I would be implicated in the case if I had not acted upon his instruction."
Again to the A. P. P. In re-examination this is what he stated:- "It is a fact that I was present at the place of incident but I was 20 yards away from the place where the incident took place. I had actually not seen the accused Haroon inflicting the knife injury but I had seen the rest of the incident."
Clearly he has perjured and has made himself liable for being prosecuted for giving false evidence.
As for Jamal he merely stated that he saw a person "falling on the ground" from a Distance of 30 paces. In cross-examination he admitted not having known his name but by face only and that he had not seen him at the wardat. This evidence again is worthless. As for Zahid A.I he admitted in his examination-in-chief having seen Shah Nawaz being stabbed by one Haroon, but later on stated that the appellant is not the same Haroon who had inflicted knife injury on the deceased. He was declared hostile and cross-examined, with reference to his 164 and the lower Court statements, but still he maintained that the name of the assailant was disclosed to him by the brother of the deceased and that he had told the police that the appellant was not the same person. His lower Court statement was not transferred to the Sessions file possibly because he had taken the same stand there. There is no denying the fact that this witness has minimised his evidence at the trial and the reason is not far to seek, for he was won over, but nonetheless he remains a thoroughly unre--liable witness and his evidence cannot be used for any purpose whatsoever Lastly, as pointed out above, Idris has not supported the prosecution case.
9-A. The upshot of the above discussion is that there is no unimpeach--able evidence on record to sustain conviction on capital charge and for this the witnesses are to be blamed. Both Mazhar and Sultan mutually excluded the other and the presence of either of them was not established by other witnesses who could be said to be independent but who have themselves perjured to an extent that their evidence cannot be accepted to any extent. The trial Court did not appraise the evidence of Mazhar and Sultan from this angle. It again laid emphasis on the presence of Irshad, Jamal and Zahid A.I but that by itself is of no consequence if they take upon them--selves the responsibility of not supporting the prosecution evidence in two essential respects, namely the presence of Mazhar and Sultan and the identity of the appellant. It is the inherent value of the evidence of a witness that counts and if he is proved to be unreliable we do not see how his evidence can be split up for the purpose of accepting that part of it which to an extent supports the prosecution case though not in material respects as to fasten liability on the appellant.
10. It is the prosecution case that the appellant was arrested from the platform of Multan Railway Station where he had gone to board the train for Karachi. If that is so, then a person who had absconded would not voluntarily attempt to return for his conduct would be to hide himself. This conduct, therefore, is also explainable on the premise of an innocent hypothesis that he had gone to Multan in connection with his business. Even otherwise it cannot be incriminating unless the other evidence beyond doubt establishes the guilt of the appellant which is not the case here.
Therefore, the trial Court erred in treating it as a corroborating evidence.
12. The prosecution has failed to establish beyond reasonable doubt the guilt of the appellant and while giving the benefit of it to him we accept his appeal and acquit him. The sentence of death is not confirmed and the reference is rejected. He shall be released forthwith unless required in some 'other case.
13. Since Irshad who was an important eye-witness has given false evidence we would issue notice to hiss to show cause as to why he should not be prosecuted under section 193, P. P. C. For giving false evidence in the case.