MUHAMMAD HUSSAIN ADIL KHATRI, J: -- This judgment will dispose of Confirmation Case No.9 of 1991 and Criminal Appeal No.119 of 1991.
2. The appellant Muhammad Iqbal and another person Sadaqat Ali were sent up to stand trial for offence under section 302 read with section 34, P.P.C. For commission of murder of Hafiz Muhammad Din. The appellant was found guilty and convicted under section 302, P.P.C. And was sentenced to death while the co-accused was acquitted of the charge be the IIIrd Additional Sessions Judge, Karachi (East) by his judgment, dated 11-5-1991.
3. On 17-7-1985 at 20-30 hours, P.W.9 Hashim Khan had recorded the statement of P.W.1 Haji Juma Khan under section 154, Cr.P.C. Wherein it was stated by the complainant that the deceased Hafiz Muhammad Din, aged 22 years and Abdul Karim, aged 19 years, worked with him at his shop, known as Abdul Karim and Bros. Iron and Steel Works, situated at Azeempura Road, Gulfishan Housing Project, Malir. On 17-7-1985 at 18-30 hours his aforesaid sons were present at the shop at some distance from the shop. At the main road, driver and conductor of Mazda Vehicle No.864-636 of `Y' route, were having dispute with a passenger. The driver and the conductor beat the passenger who was crying and running on the road towards his shop, after saving his life. The conductor and the driver had iron bars in their hands and were chasing him. His sons Hafiz Muhammad Din and Abdul Karim also followed that passenger. His son Hafiz Muhammad Din prohibited Sadaqat Ali son of Nazeer Khan and Muhammad Iqbal son of Muhammad Idrees (conductor and the driver), whereupon the said persons challenged his son and asked him to go away otherwise he would be finished. His son stood in front of them and both the accused got furious. Conductor Muhammad Iqbal gave one blow with iron rod on the head of his son Hafiz Muhammad Din who fell down and driver Sadaqat Ali gave iron bar blow to his other son Abdul Karim on his hand who also fell down. The complainant raised cries which attracted Master Rehmat, Nazeer Ahmed, Muhammad Sharif and other persons and they also saw the incident. Hafiz Muhammad Din died after some time due to the injuries. .
4. Prosecution examined P.W.1, Juma Khan, father of the deceased, P.W.4, Nazeer Ahmed, P.W.5 Rehmat Ali, P.W.7 Abdul Karim, brother of the deceased, P.W.8 Muhammad Sabir and P.W.10 Muhammad Bashir, all of whom claimed to be eye-witnesses. P.W.2 Haji Fazal Din is the Mashir of dead body, P.W.3 Muhammad Ishaq is the Mashir of arrest and recovery of crime weapon, P.W.6 is the Assistant Sub-Inspector of P.S. Malir who had taken the dead body to the hospital, P.W.9 Muhammad Hashim at the relevant time was the incharge of P.S. Malir City and had recorded the statement of the complainant (P.W.1) under section 154, Cr.P.C., P.W.11 Dr. Iqbal Ahmed and R.W.12 Dr. Khalil Ansari were at the relevant time posted at J.P.M.C. The former had conducted the post- mortem of the deceased and the latter had medically examined the injured P.W.7 Abdul Karim, the appellant and the co---accused Sadaqat Ali.
5. The learned Judge based his conviction on the ocular evidence of the witnesses and recovery of the crime weapon.
6. We have heard Mr. Muhammad Ilyas Khan, learned Advocate for the appellant and Mr. Shaukat Zubedi, learned AA.-G. Sindh for the State.
7. The learned Advocate for the appellant made following submissions:--
(i) The incident had not taken place as alleged by the prosecution. The attending circumstances show that the mini-bus referred to in the statement under section 154, Cr.P.C. Was burnt and so also the hotel nearby was damaged. Both the accused had also received injuries and far as the injury received by the appellant is concerned was grievous nature and had crippled him. All the prosecution witnesses concealed the facts relating to setting on fire the bus and damage caused to the hotel and so also the injuries caused to the accused persons.
(ii) Although it is alleged that hundreds of people had collected at the place of incident but the police examined only interested persons.
(iii) The arrest of the accused persons and the alleged recoveries were made in violation of section 103, Cr.P.C. The recovery of crime weapon is not proved by the prosecution.
(iv) P.W.10 Muhammad Hashim after recording the statement under section 154; Cr.P.C. Had handed over the investigation to Inspector Khursheed Ahmed Narejo, who had recorded F.I.R.
No.212/85 under section 436/147/323, P.P.C. Pertaining to burning of the aforesaid vehicle and ransacking the hotel, by Master Rehmat Pathan and 40 or 50 other persons. The said Inspector had investigated and challaned the present case but prosecution did not examine him. It was urged that non-examination of the Investigating Officer has left the case unproved and caused great prejudice to the case of the appellant.
(v) The learned Additional Sessions Judge has not believed the prosecution evidence in so far as co-accused Sadaqat Ali is concerned and, therefore, the same evidence cannot legally farm basis for conviction of the appellant.
8. From amongst the prosecution witnesses P .W.8 was declared hostile, P.Ws. Juma Khan and Abdul Karim are father and brother of the deceased respectively, P.W.4 Nazeer is the neighbour, who has a shop, in the neighbourhood of the shop of P.W.1 Juma Khan and the remaining eye- witness P.W.5 Rehmat Ali is an employee of P.W.1 Juma Khan and is the person against whom F.I.R.
No.212/85 was recorded by the Investigating Officer and is alleged to have burnt the mini-bus and ransacked the hotel alongwith 40 or 50 other persons, according to the results of investigation conducted by the aforesaid Officer. It has come on the record that P.W.9 Muhammad Hashim, the Incharge of P.S. Malir City had reached the place of occurrence at 7-30 p.m. And had found hundreds of people had gathered at the Vardat. Other prosecution witnesses, including the eye- witnesses, have also confirmed the fact that several people had collected at the place of occurrence. Hashim Khan had recorded the statement of the complainant under section 154, Cr.P.C. On reaching the place of occurrence, but, however, he neither took the witnesses from amongst the persons who had collected there, nor examined any of the persons who were travelling in the mini bus in which the incident is alleged to have originated. The prosecution did not examine even Asif Mahmood, the person who was being followed, according to the prosecution, by the appellant and the co-accused with iron bars in their hands. Muhammad Sharif, whose name appears in the F.I.R., was also not examined in Court. P.W. Rehmat A1i, as is disclosed in the F.I.R. No.212/85 (Exh.42-A), was the person who led the mob to burn the mini bus. He, therefore, will be naturally interested in the conviction of the appellant. Therefore, for such additional reason, to place any reliance on his evidence will not be safe. Presence of P.W.10 at the place of occurrence is doubtful at the time of incident. He stated that both the injured were taken to the hospital by their relations and neighbours. He does not refer to presence of P.W.9 Muhammad Hashim who had taken the dead body to hospital. His deposition suggests that Muhammad Din did not die at the place of incident but after he was taken to the hospital.
This witness also appears to be under the influence of Juma Khan, which is evident from the fact that he was supplied his statement under section 161, Cr.P.C. By Juma Khan which he studied. He studied it also on the day, his deposition was recorded. According to him 150 or 200 persons had collected at the place of incident, but he did not know name of any of them. Thus, he has excluded presence of P.Ws. Nazeer Ahmed and Rehmat Ali, Muhammad Saleem and Muhammad Basheer at the time and place of the occurrence. The above witnesses are evidently interested and set up witnesses.
9. The prosecution failed to examine any disinterested witness although admittedly 150 to 200 persons had collected at the place of incident but none of those persons was examined by the police and none of them wars cited as witness, which reflects adversely on the prosecution case.
Under these circumstances the evidence of the so-called eye-witnesses examined by the prosecution cannot be accepted in the absence of any corroborative evidence.
In the case of Muhammad Sharif v. Tahirur Rahman and 3 others 1972 SCMR 144, it was observed that the failure on the part of the prosecution to produce a 'single disinterested witness is a point that goes against the prosecution and that in the absence of any corroboration of evidence of such eye-witnesses, it was not safe to place implicit reliance on their evidence.
10. According to P.W.1 Juma Khan, his statement was recorded under section 154, Cr.P.C. At the hospital, whereas P.W.9, who had recorded the statement, deposed in Court that the said statement was recorded at the place of incident when he had reached there. He has reached at the place of incident at 7-30 p.m. The statement under section 154, Cr.P.C. Was recorded at 20-30 hours. F.I.R. Has not been produced and it cannot be said as to when the aforesaid statement was incorporated in the F.I.R. Register.
It is not .The case of the prosecution that the appellant and the co---accused were known to the complainant. Juma Khan in Court deposed that he came to know the names of the accused at the place of incident. It is not disclosed as to what was the source of such information. In his statement under section 154, Cr.P.C. He has given not only the full names of the appellant and the co-accused but also their parentage. This factor coupled with the contradiction with regard to the place of recording of the aforesaid statement, leads to only one conclusion that this statement was not recorded at either of the two places or the time disclosed by the said two witnesses. According to the defence theory, the appellant was injured in the incident and due to injury received by him he was not in a position to walk. According to P.W.12 Dr. Khalil Ansari, who had examined the appellant, he had found fracture of anterior calcanous bone. He has produced supplementary medical report confirming the said injury. If such injury was received by the appellant, before the murder of Muhammad Din, it is difficult to believe that he was able to cause such a forceful blow to the deceased on his head, as it would not be possible for him to stand on his feet. If the injuries were caused to the appellant after the murder he would not have been allowed by whosoever had caused such injuries to leave the place of occurrence. It has been deposed by the appellant and Sadaqat Ali that they had gone to the police station to lodge the report about burning of the bus by Rehmat Ali and others and the attack by the said persons on the appellant and Sadaqat Ali. This appears to be near the truth and is confirmed from the fact that the complainant had given the parentage of the accused persons in his statement under section 154, Cr.P.C. And it appears that he came to know the said particulars at the police station where the appellant and the co- accused must have disclosed their parentage.
It is, therefore, clear that the aforesaid statement of Juma Khan was not recorded as has been alleged by the prosecution, but was maintained subsequently.
11. There is no consistency in the prosecution evidence with regard to time and place of arrest of the appellant and the other accused. As per memos, of arrest (Exhs.8 and 10) appellant was arrested on 19-7-1985 from Aqil Hotel and Sadaqat Ali on 18-7-1985 from Malook Hotel. But P.W.1 in his evidence deposed that the appellant was arrested on the next day of the incident, i.e. On 18-7-1985, from Malook Hotel. Similarly P.W.3 Muhammad Ishaq deposed that both the accused were arrested on 18-7-1985. According to him the recovery of the iron bars used by the appellant was also affected on that day; whereas, according to the memo., recovery from appellant was made on 23- 7-1985. P.W.1 admitted that he had signed the memos at the police station, so also it was admitted by P.W.3 Muhammad Ishaq and P.W.7 Abdul Karim. P.W3 Muhammad Ishaq has stated that he was called in the evening on 18-7-1985 at the police station and his signatures were obtained on the memos. According to him, the police had obtained his signatures on four such documents which is consistent with the fact that two are the memos of arrest and two are the memos of recoveries.
This goes a long way to erode the validity and credence of the aforesaid recoveries and are suggestive of the fact that all the documents were manipulated.
The learned trial Court Judge did not apply his mind at all to the evidence, pertaining to the recoveries.
In this case although it is alleged in the memo of recovery that the iron bar allegedly recovered from the house of the applicant was stained with the blood but P.W.3 Muhammad Ishaq deposed in Court that it was not stained with the blood. Neither the said iron bar was produced in Court nor the report of chemical examiner has been brought on record. Thus, these recoveries are of no consequence.
12. It was contended by the learned counsel for the appellant that the recoveries were effected in violation of the principles laid down under section 103, Cr.P.C. Instead of associating independent respectable persons of the locality, interested witnesses, namely, Abdul Karim and Muhammad Ishaq were made Mashirs.
It has come in evidence that when the police arrested the appellant from the hotel, many other persons were sitting there but they were not made witnesses of arrest of the appellant. It has also come on record that the house of the appellant is situated in a street, there being other buildings on both the sides of his house but none of the residents of that area were called to witness the recovery. So far as evidence of P.W.3 Muhammad Ishaq is concerned it is further noted that in cross-examination he stated that he did not go inside the house of the appellant to see the recovery but was standing outside and after recovery he was told that the iron bar was recovered from beneath the cot.
Learned counsel for the appellant relied on the case of Muhammad Achar v. The, State PLD 1990 Kar. 314, wherein after referring to the case --law, it was observed that in case where witness of recovery is called from a place other than the locality where search or recovery is made and is a populated area, serious doubts will be caused on such recovery. Evidence of recovery has not been relied upon where witnesses from other locality have been made Mashirs. Under these circumstances there is no escape from the conclusion that the prosecution has failed to establish recovery of the crime weapon from the appellant.
13. As has been rightly contended these prosecution witnesses, who claimed to have seen the incident, have concealed very material facts as has been noted above, namely, the burning of the bus and ransacking of the hotel and the injuries suffered by the appellant and co-accused Sadaqat Ali. These witnesses, therefore, cannot be believed in absence of any corroborative evidence. It is of importance to note that the duration of injuries caused to they appellant and the co-accused is consistent with that of the deceased in this case. If the prosecution witnesses had seen the commission of murder, they must have witnessed the incident of injuries caused to the appellant and the co-accused.
In the case of Faridullah Shah and another v. The State 1990 P Cr. L J 1945, which is a D.B. Decision of the Peshawar High Court, the witnesses were disbelieved for the reason that they had suppressed material evidence regarding causing of fire-arm injuries to one of the accused.
The above authority is applicable with full force to the facts of the present case.
The prosecution witnesses have concealed material facts as is indicated by F.I.R. No.212/85 of the same police station, with a purpose to screen their guilt. The said F.I.R. Has been produced by defence witness Muhammad Ishaq, Head Constable of P.S. Malir, as Exh.42.A, lodged by State through the Investigation Officer of this case, wherein it is alleged that Master Rehmat Ali (P.W.5) in this case, alongwith 40 or 50 persons had set the Mazda bus on fire and ransacked the hotel.
It is not possible to say what turn the present case would have taken if the prosecution witnesses had honestly disclosed the incident as it had taken place or the Investigation Officer had been examined and the prosecution had produced the record of F.I.R. No.212/85.
14. The prosecution evidence also cannot be relied upon for another reason. The tenure of the judgment of .The trial Court shows that it did not believe in the ocular evidence of these witnesses so far as the co-accused Sadaqat Ali is concerned. In the case of Muhammad Sharif (supra), their Lordships had noted that the trial Court had not relied on the evidence of the prosecution witnesses so far as 4 out of 7 accused persons were concerned and; therefore, as it appears, their evidence was not treated reliable for conviction of the other accused. So also in the case of Muhammad Nawaz v. The State 1984 SCMR 190, it was held that under such circumstances the appellant could not be convicted without corroboration and will be entitled at least to the benefit of doubt. In the case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11, referring to the principle of falsus in uno falsus in omnibus, have also referred to a similar rule in the administration of criminal jurisdiction which is hallmark of Islamic Jurisprudence that when a witness has been found false with regard to the implication of one accused about whose participation; he has deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. Their Lordships then have referred to the rule which has been developed in Pakistan as a matter of convenience in the case of Ghulam Muhammad v. Crown PLD 1951 Lah. 66, 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.
Their Lordships have then referred to the case-law on the subject. The same view was earlier expressed by the Supreme Court in the case of Abdul Rahman and others v. The State 1983 SCMR 958.
15. The learned trial Court has referred to motive of the offence behind the murder of Hafiz Muhammad Din. No motive was alleged nor there is any motive established on record.
16. Mr. Shaukat Zubedi, the learned A.A.-G. Sindh very frankly conceded that he was not in a position to defend the impugned judgment or justify the conviction of the appellant. He supported the submissions made by the learned Advocate for the appellant and pointed out that in the cases of Muhammad Yaqoob v. The State 1981 P Cr. L J 693, Muhammad Sharif and another v. The State 1972 P Cr. L J 1259, relying on the case of A.K.M. Reza and others v. The State reported in PLD 1958 Dacca 111, it has been observed that the Investigation Officer must be examined if he is available and in case he is not examined, the entire investigation remains unproved and also causes prejudice to the defence.
In the instant case the examination of the Investigation Officer was rather necessary. Keeping in view the fact that he had recorded another F.I.R. With regard to the same incident, wherein no reference whatsoever was made with regard to alleged commission of murder by the appellant and the co---accused.
17. It is to be deprecated that the learned trial Court Judge while considering the defence evidence which consisted of depositions of the appellant and the co-accused under section 340, Cr.P.C. And defence witness, has observed that the appellant had failed to establish his innocence but while referring to the evidence of the prosecution the learned Judge has not applied his mind thereto or scrutinized to see whether it has brought home the charge of murder of Hafiz Muhammad Din levied against the appellant.
It is the cardinal principle of criminal law that the prosecution has to prove charge against the accused beyond reasonable doubt and accused is not required to establish his innocence. The probative value of the defence evidence is not to be weighed in the same manner as that of the prosecution evidence. If the accused in his defence succeeds to create doubt About the correctness of the prosecution evidence, that would be sufficient to warrant his acquittal, as against this, the prosecution has to prove its case beyond reasonable doubt.
We, therefore, are of the opinion that the prosecution has failed to prove the charge against the appellant beyond reasonable doubt.
Above are the reasons for the short order announced on 17-3-1992, whereby the confirmation of the death sentence was declined and the appeal was allowed, and the appellant was ordered to be released if he was not required in any other case.
N.H.O./M-1680/K