M. HUSSAIN ADIL KHATRI, J.-- The appellant has filed this appeal challenging the judgment dated 4- 11-190 passed by the IInd Additional Sessions Judge, Larkana, convicting the appellant for an offence under Section 302 PPC for the murder of Mst. Umrah daughter of Siandad and awarded him sentence of life imprisonment and fine of Rs. 5,000/- and in case of failure to suffer R.I. For six months more.
The charge sheet was submitted against the appellant and his accomplice Mohammad Bashir, who was declared as proclaimed offender after taking usual proceedings.
2. On 6-4-1988, Haji Mohammad Mureed lodged a report at Police Station Bakrani, District Larkana, stating that he was residing alongwith his two sons in the Village Mad Bahu, Taluka Dokri. At about 1930 hours, the appellant armed with a pistol and Bashir s/o Baxal Chandio armed with a hatchet entered his house and "just after coming", appellant fired a pistol shot at his wife Mst. Umrah which hit on her face. They cried "Murder, Murder, Murder". Bashir threatened them not to cry. They due to fear did not go near to them. On their cries and report of fire, his brother Haji Ghulam Mustafa came there and saw the above assailants. The assailants ran away from the house with weapons pronouncing that Mst. Umrah had enjoyed a lot at Saudi Arabia and that, therefore, they had done away with her. They went near Mst. Umrah and found her bleeding and dead, due to the fire shot on her face. Leaving his son, Abdul Qadir and brother Ghulam Mustafa to look after the dead body, he reached the Police Station to lodge the report. It is also stated in the FIR that Haji Mohammad Mureed resided in Saudi Arabia alongwith his children for about 20 years and had come back to Pakistan about 4 years back and started residing in his village alongwith his wife and children, The appellant used to say that Mst. Umrah who was his mother's sister, had illicit relations with Mithal s/o Rasool Bux Chandio at Saudi Arabia and it was on that count that the appellant and his accomplice had committed her murder.
3. The prosecution examined P.Ws. Dr. Amjad Ali Shah at Ex.6, who performed post-mortem on the dead body of Mst. Umrah on 7-4-1988, Mohammed Mureed the husband and Abdul Qadir the son of deceased at Ex.8 & 9 respectively who furnished ocular evidence of the occurrence, Imdad Ali Shah Police Constable at Ex. Ll who carried the dead body from the place of occurrence to the Taluka Hospital Dokri, Ali Mohammed the Sub-Inspector of P.S Bakrani at Ex. 14 who investigated the case, arrested the appellant and recovered the pistol from him and Ghulam Rasool Tapedar of Deh Mad Bahu at Ex.16 who prepared the sketch of place of occurrence.
4. The learned trial Judge based the conviction of appellant on the ocular testimony of Haji Mohammad Mureed and his son Abdul Qadir who were examined at Exs. 8 & 9 respectively.
According to the learned trial Court Judge the testimony of the aforesaid witnesses was corroborated by motive as the appellant who was son of the sister of the deceased had declared her as 'Kari' and further corroboration was sought from the medical evidence. The recoveries of pistol from the appellant and an empty cartridge from the place of occurrence were disbelieved and discarded and consequently the Ballistic Report also.
5. The learned counsel for the appellant has urged the following points:- Both the eye-witnesses are the interested witnesses and their evidence suffers from contradictions and inconsistencies. Their testimony is not supported by any independent witness or physical evidence. Though the place of occurrence was surrounded by other houses belonging to persons of different castes but not a single independent witness has been examined. The evidence in motive also suffers from contradictions and inconsistencies and it has come from the mouth of the same witnesses whose evidence itself requires corroboration.
6. Both the prosecution witnesses were closely related to the deceased. It is the case of the prosecution that the appellant used to propagate in the village that Mst. Umrah had illicit terms with one Milhal s/o Rasool Bux Chandio at Saudi Arabia. The disparagement and degradation that might had been caused to the husband and grown- up son of the deceased is not difficult to imagine. According to the prosecution the appellant having declared her Kari, had killed her. This has been stated to be the motive behind the murder. This very fact is enough to portray the state of disposition of the complainant party and the* appellant to each other.
It is said that motive is another name of enmity. It is double edged and cuts both the ways. If it can be advanced by prosecution as the reason for an accused- person to commit murder, it can equally be used by the accused for his false implication in the case.
Under these circumstances the status of the two eye witnesses Mohammad Mureed and Abdul Qadir is no better than that of interested witnesses. In this respect the case of Janib and 2 others Vs. The State (1986 P.Cr.L.J. 853) may be j referred.
It is a rule of prudence and has been repeatedly stressed upon that the evidence of interested or hostile witnesses cannot be accepted without) corroboration. The case of Mohammed Sadiq Vs. Mohammad Sarwar & 3 others (1979 S.C.M.R. 214) is the authority on the subject.
It is established law that such evidence which itself requires corroboration, Cannot be of any corroborative value. In the case of Rasool Bux and another Vs. The State (1980 S.C.M.R. 225) the evidence that was produced by the prosecution about the motive for the murder, was held to have no corroborative value because it came from the months of the very witnesses whose evidence required corroboration.
In the case of Nazar Ali Vs. The State (1981 S.C.M.R. 132), Court observation as under: "However, the learned Advocate-General drew our attention to the fact that the learned judges were also of the view that the ocular evidence was "fully corroborated... By the motive....... " with respect, we are unable to agree with these observations of the learned Judges which are contrary to the evidence on the record. It is true that the eye-witnesses gave evidence of motive, but as the question was of the corroboration of their evidence, their own statement about the motive for the crime could not furnish corroboration of their evidence".
The reference may also be made to the case of Janib & 2 others (Ibid).
In view of the above enunciation of rule of appraisal of evidence, the testimony of Mohammed Mureed and Abdul Qadir on the motive for crime is to be discarded for the reasons that they are interested witnesses, their testimony itself requires corroboration and that their evidence on motive is even otherwise shaky, flimsy and discrepant.
7. However, the learned advocate for the State has contended that the motive has been duly proved by the two eye- witnesses who had no reason to falsely implicate the appellant who was also related to the deceased.
Keeping in view the rival contentions, it would be conducive to consider the contention raised by the learned advocate for the State.
According to FIR the assailants had disclosed the motive only when they were running away after firing the shot by saying that Mst. Umrah had a lot of fun at Saudi Arabia, and, therefore, they had killed her. He has further stated that the appellant used to allege that his wife had illicit terms with Mithal at Saudi Arabia.
In examination in chief the complainant Mohammed Mureed stated that the assailants had given the reason that is, disclosed the motive, while attacking Mst. Umrah by saying that she was Kari as against the statement in the F.I.R, that such reason was disclosed by both the assailants while they were running away from his house and then stated that the motive was disclosed only by the appellant and not by both the assailants. In cross-examination, this witness made further departure from the earlier versions with the result that the entire complexion of the story changed which can be noted from the following particulars. He disclosed that it was only at the time of incident that the appellant declared his wife as Kari and disowned the statement in the FIR/that the appellant used to make such allegations against his wife. In cross he changed the above statement by deposing that the appellant, at the time he attacked his wife had not declared her as Kari. So far as P.W. Abdul Qadir is concerned, he deposed that the appellant used to propagate in the village that the deceased Umrah was Kari at Saudi Arabia and he was challenged in the cross- examination with regard to such assertion and was asked to give the name of any person before whom the appellant had made such a statement. He could not give the name of any person. No person of the locality was examined by the prosecution to prove the said motive.
The contradictions and inconsistencies noted above have rendered the evidence of the above two witnesses incredible and unreliable and as such there is no option but to hold that the prosecution has failed to prove the alleged motive. Since the motive was alleged by the prosecution, it was its duty to prove the same. The failure of the prosecution to prove the motive could be fatal to the prosecution case. In this regard reference may be made to the case of Mohammed Sharif Vs. The State (1986 P.Cr.L.J. 637)
In the case of Hakim Ali & 4 others Vs. The State & another (1971 S.C.M.R. 432), it was held that it is not necessary for the prosecution to set up a motive in every case but where the prosecution had set up the motive and failed to establish it, then it is the prosecution that must necessarily suffer on that account and not the defence.
In the case of Mohammed Sadiq Vs. Mohammed Sarwar & two others (1979 S.C.M.R. 214) it was held that the fact that the prosecution has failed to prove the motive it would only mean that the ocular evidence is to be scrutinized with great caution. Similar view was expressed in the case of Nazir Mohammed alias Nazir Ahmad Vs. The State (PLD 1974 Kar. 274).
8. This brings us to consider the worth of the ocular evidence in respect of the occurrence. The contradictions and discrepancies in evidence on the issue of motive have been already noted above. It may be observed that the motive is so interwoven in the totality of the prosecution evidence that it cannot be separated from the rest of the evidence which also is to be discarded for the same reason. In view of the submissions of the learned counsel appearing for the State, the said evidence is, nonetheless being considered in extenso.
P.W. Mohammed Mureed in the FIR had stated that on the fatal day, he, his son Abdul Qadir and his wife were sitting in the house and just thereafter appellant fired the pistol shot at his wife. They raised cries upon which Bashir threatened them not to cry and due to fear, they did not go near the intruders.
While deposing in Court, at the stage of examination-in-chief, he remained near to his version as given in the FIR but however, made some important diversions. He introduced presence of his two little sons at the time of occurrence and he also stated that he, his wife and P.W. Abdul Qadir were sitting on a cot, when appellant entered the house. On seeing the assailants, his wife came out of the room and when she received the bullet injury, she was at a distance of 6 to 7 paces from them.
To walk a such distance must have taken some moments. Therefore the statements of this witness and his son that the appellant fired no sooner than he entered the house, stand falsified.
According to the complainant Mohammed Mureed, they did not go near the assailants due to fear, but Abdul Qadir stated that they tried to intervene whereupon Bashir advanced the threat. As against that P.W. Mohammed Mureed stated that the threat was given then they raised the cries.
P.W. Abdul Qadir introduced presence of his younger brother, Abdul Aziz who is said to be 10 to 11 years old, at the time of occurrence and P.W. Mohammed Mureed introduced the presence of his married daughter, Mst. Taslim at the time of incident and stated that she had seen the incident.
P.W. Abdul Qadir first disowned the presence of his sister, Taslim, in the house but then admitted the same. According to him, they were sitting on a cot, but his said sister was in courtyard. P.W.
Mohammed Mureed had stated that his wife was sitting with him and his son on the cot, whereas according to P.W Abdul Qadir, she was standing at a distance of 5 to 6 feet from the cot. He does not state that his mother had come out from the room on seeing the assailants when they entered the house. According to FIR and so also the deposition of the complainant in Court, no attempt was made to catch hold of the assailants but according to P.W Abdul Qadir, they tried to catch the assailants but they escaped due to arms in their hands.
The above inconsistencies, discrepancies and contradictions have rendered the evidence of the said two witnesses worthy of no credence or at least it would be highly unsafe to rely on them to sustain the conviction. In the case of Mohammed Sharif Vs. The State reported in 1986 P.Cr.L.J. 637 relied upon by the learned counsel in support of his submission, it was held that every conceivable benefit must be given to the accused when there was only ocular testimony of the interested witnesses which suffered from inherent defects. It was, therefore, held to be unsafe to convict the appellant on such evidence.
9. The learned counsel has rightly contended that in the case, the eyewitnesses of the occurrence are the husband and son of the deceased and, therefore, their testimony is to be considered with greater caution and cannot be accepted in the absence of independent corroboration. For the above proposition, he has relied on the case of Mir Khan etc. Vs. The State (1978 P.Cr.L.J. 779).
10. It was next contended that in the case of capital charge ocular evidence in order to carry conviction must come from unimpeachable source or must be supported by some strong circumstances. He has relied on the case of Bagh Ali & 4 others Vs. The State (PLD 1973 S.C. 321) wherein referring to the case of Thoba Vs. The State (PLD 1963 S.C. 40) their Lordships reiterated that the appraisement of the evidence of eye-witnesses has to be based upon the full consideration and evaluation of all the circumstances appearing. The case where there is a total absence of physical circumstances to connect the accused persons with the crime and there is a back ground of enmity, in such a situation, the ocular evidence must in order to carry conviction on a capital charge come from an unimpeachable source. If such a source is not available then it must be supported by some strong circumstances which would enable the Court to overcome the inherent doubt which such evidence must necessarily create.
11. The learned counsel appearing for the State has contended that although P.W Mohammed Mureed and Abdu! Qadir are related to the deceased but otherwise they have no motive to implicate the appellant in the case and, therefore, these witnesses are to be relied upon. He has relied on the case of Shamsher & another Vs. The State (1973 S.C.M.R. 69). In the aforesaid case, the learned Judges while placing reliance on the evidence of Abdul Rehman, a young lad of 14 years at the relevant time, was observed that it would be unnatural for his father's relations to help him in taking revenge from the deceased. It was, therefore, observed that in the circumstances the Supreme Court was inclined to agree with the court below that although P.W Aurangzeb was related to the deceased, yet he was not inimical towards the appellant and his evidence could be relied upon if otherwise found to be in order and acceptable. At page 79, their Lordships further noted that the relationship of the said Aurangzeb with the deceased did not by itself make him directly interested in the murder of his maternal uncle. The above authority, therefore, does not help the prosecution in any manner. He then referred to the case of Fazal Divan Vs. The State (1973 S.C.M.R. 473). In this case, the Court has relied on the evidence of a solitary eyewitness who was cousin of the deceased. The said witness was found to be a natural witness whose evidence was supported by dying declaration of the deceased. But in this case, the eye-witnesses are not supported by any other evidence.
He then relied on the case of Mohammed Nawaz Vs. The State (1982 P.Cr.LJ. 116 Lahore) on the proposition that the presence of the two eyewitnesses was not open to a serious doubt and, therefore, should be accepted. The learned advocate has misconceived the aforesaid authority wherein the evidence of the prosecution witnesses was supported by existence of motive which lent support to the ocular account of occurrence. There was also no suggestion of any animosity between the parties or reasons to falsely implicate the accused. It was also observed that although motive alone would not be sufficient to corroborate the ocular testimony yet in the whole body of proof, it is an important piece of evidence. It will not be sine-qua-non for bringing the guilt home to the accused yet it is relevant and important on the question of intention. It was observed. "generally, voluntarily acts of sane persons are not without motive. The existence of motive, therefore, have a great significance in a criminal trial".
The above authority, therefore, is of no help to the prosecution.
12. The learned counsel for the State contended that the evidence of the above two witnesses is sufficient to warrant conviction of the appellant. He relied on the case of Abdul Rasheed Vs. Umid Ali & two others (PLD 1975 S.C. 227). In the said case, the evidence of eye-witness was supported by existence of motive and retracted judicial confession. In the aforesaid case, it was observed that the court have more than not insisted on independent corroboration before placing reliance on testimony of interested witnesses, yet it is not an inflexible rule to be rigidly and unexceptionally applied. There might be cases in which the witnesses related to the deceased, be otherwise quite natural, furnishing direct evidence of a convincing nature, unless there are reasons to believe that they have animus against the accused and are giving rather distorted or exaggerated account which does not inspire confidence. It has been already noted above that the evidence of the eye- witnesses in this case is highly unreliable and far from being of convincing nature.
13. The learned counsel has relied on the above case of Mohammed Nawaz in support of his contention that the ocular testimony of the said two witnesses is supported by the medical evidence. Although such an observation has been made in the above case but I am not prepared to accept the proposition that medical evidence case corroborate the ocular testimony. All that the medical evidence does is to prove that location of injury on the person, its impact on the life of the victim and the weapon used for causing such injury. It cannot on the facts of the case lend any support to the manner of the occurrence of the incident. In this regard, reference may be made to the case of Machia & 2 others Vs. The State (PLD 1976 S.C. 695) and a Division Bench Judgment of this Court in the case of Janib & two others Vs. The State (1986 P.Cr.LJ. 583).
14. It was admitted by both the above two prosecution witnesses, P.Ws. Ali Mohammad and Ghulam Rasool Tapedar that Mad Bahu is a big village where people of different castes reside. According to Mohammed Mureed, his houses is surrounded by the house of Memons and Khoras. The site plan (Ex.16- A) prepared by P.W Ghulam Rasool, the Tapedar of the area, shows that in between the house of the complainant and Ghulam Mustafa, there is house of Mohammed Urs. He also deposed that there are 1200 houses in the village and the place of occurrence is surrounded by the houses belonging to the persons of different castes. In spite of the above location of the place of occurrence the only person said to have been attracted on their cries was Ghulam Mustafa and none else. If Ghulam Mustara could be attracted, it does not stand to reason that Mohammed Urs who lived in the adjacent house would not hear the cries and fire report.
In the circumstances of this case, it can be safely concluded that none of the residents of the locality was prepared, to support the prosecution story, admittedly including even Ghulam Mustafa, the brother of the complainant who was given up by the prosecution for the said very reason.
There has been a conscious attempt on the part of the husband and son of the deceased to suppress the presence of Mst. Taslim and Abdul Aziz which was admitted by them only when they were made to disclose it in the cross- examination.
15. The above conduct on the part of these witnesses and that of the prosecution who did not examine any independent witness from the locality, creates serious doubts about the manner in which the incident is alleged to have taken place. The doubts are further strengthened by the contradictory and discrepant version floated on the record.
16. There is another factor which has caused a great set-back to the prosecution case and adversely reflects on the honesty of the investigating officer.
P.W Ali Mohammed who investigated the case, deposed in court that the appellant was arrested at 8-00 a.m. On 19-4-1988 from the Otaq of Ali Gohar under Mashirnama (Ex.14-C). After arrest, the appellant voluntarily led him to his house where from a trunk, the appellant produced a country made pistol. Ex.14-C is the Mashirnama of arrest of the appellant from the Otaq of Ali Gohar. Ex.14-D is titled as Mashirnama regarding recovery of pistol but in the said Mashirnama the arrest of the appellant is shown from his house on 19-4-1988 at 08-30 hours. P.W Ali Mohammed was confronted with the above discrepancy but he was not in a position to explain the same. In the examination-in-chief this witness also stated that he did not remember if any empty was recovered by him. The above conduct of the investigating officer brings in focus the unreliability of the recovery of the pistol from the appellant and the empty from the place of occurrence.
17. The above is to be seen in the back- ground of the facts alleged. The police arrived at the place of occurrence when P.W Mohammed Mureed and Abdul Qadir were present. Mashirnama must have been prepared in their presence and if any empty was recovered, it must have been recovered in their presence but however, none of these witnesses had deposed about such recovery. The two Mashirs were not examined by the prosecution on the plea that they were won over by the appellant.
The learned trial Court Judge had therefore, rightly discarded the aforesaid evidence from the consideration.
The judgment of conviction of the appellant therefore cannot be sustained and the same is set aside and the appeal is allowed, appellant be released forthwith if not required in any other case.