' MUHAMMAD ASLAM ARAIN, J.--- By judgment dated 24-11-1990, the IInd Additional Sessions Judge (South) Karachi, found appellant guilty of the offence under section 302, P.P.C., sentenced him to death and has submitted the record to this Court for confirmation of death sentence. Appellant is further directed to pay. a fine of Rs,10,000 or in default to suffer R.I. For 1 year more. He is also directed to pay compensation of Rs,10,000 to the heirs of deceased under section 544-A of Cr.P.C.
Or to suffer R.I. For 1 year more. We propose to decide the appeal and reference by this judgment.
2. Facts of the case briefly are that P.W.1 Abdullah lodged F.1.R. And stated that he was a watchman in Cotton Export Corporation, and his brother-in-law (sister's husband) Ali Rehman, a fireman in Railway resided in Quarter No,158/11, Railway Colony. Appellant who resided alone in Quarter No,158/9, used to drink and allowed people of questionable character to visit him. Ali Rehman who was a pious man reprimanded appellant for his such habits and asked him to desist from such acts else the matter would be reported to police. On this appellant got annoyed and threatened Ali Rehman to see him.
3. On 12-6-1980 at about 11-45 p.m. Ali Rehman went to adjoining mosque to offer prayers and when he reached at the mosque gate, appellant accosted him and said that he had been disgraced and would not spare Ali Rehman. Saying so, appellant took out a dagger and inflicted blows to All Rehman and on cries, complainant Abdullah and P.W. Sacedur Rehman standing near the mosque, were attracted. They saw appellant causing injuries to All Rehman. Muhammad Shard; Mushtaque and many others were also attracted. Meanwhile, appellant made good his escape.
Complainant Saeedur Rehman and Mushtaque carried Ali Rehman to hospital where he succumbed to his injuries. Appellant was arrested on 13-6-1981 at 11-30 hours (as per Mashirnama Exh.7/C). After necessary investigation challan was put up in Court and charge Exh.1 under section 302, P.P.C. Was framed against appellant on 7-12-1981, to which he pleaded not guilty.
4. At the trial, prosecution examined P.W.1 Abdullah who is the complainant. He produced his statement under section 154, Cr.P.C. Recorded by police in the hospital, Exh.2, inquest report, Exh.2/B, Mashirnama of dead body Exh.2/C and Mashirnama of Wardat Exh.2/D. He also stated that after doctor declared Ali Rehman dead, P.Ws. Saeedur Rehman and Mushtaque went to Mithadar Police Station and brought police within half an hour.
' P.W. 2 Mushtaque Ahmed Exh.3 stated that on the day of incident at 11-45 p.m. He had gone to latrine just opposite to mosque, when he heard cries. He saw some persons collected there. He saw accused waiving dagger in his hand and ran away. Ali Rehman, who was lying injured informed that Amin (accused) had inflicted injuries. He brought rickshaw and he alongwith Abdullah and Saeedur Rehman carried injured to hospital. He denied that within half an hour he and Saeedur Rehman brought police to hospital. His statement under section 164, Cr.P.C. Is Exh.3/A.
' P.W.3 Ismail Exh.4 resided near the place of incident and came out on hearing commotion. He stated that he saw accused Muhammad Amin to have caught hold of deceased Ali Rehman from his collar and giving him fist blows. He then went away to his house and did not know what happened later on. In cross-examination he admitted that many people had collected there and there was no electricity in the open ground but there was light in houses.
' P.W.4 Muhammad Sharif Exh.5 knew the deceased as well as the accused who resided in railway colony. He stated that at 12-15 night after finishing his duty when he reached near Ghosia Mosque, he saw number of people collected and Ali Rehman lying in pool of blood. Ali Rehman was alive and when he went near, he was informed by All Rehman that accused Muhammad Amin had stabbed him with knife and run away. In the meanwhile P.W. Mushtaque came and he brought a rickshaw and took Ali Rehman to hospital. He also stated that Saeedur Rehman, Abdullah Khan and Mushtaque were present at the scene of offence when he arrived there. In cross-examination he stated that there were so many persons by name Muhammad Amin and he could not say definitely if Muhammad Amin named by deceased Ali Rehman is the accused present in Court. He also stated in cross that police comprising of 3-4 officers in civil dress came at 6 a.m. He also admitted that deceased Ali Rehman did not tell him that Amin had stabbed knife to him.
' P.W.5 Sabir Rehman Exh.6 is the brother of deceased Ali Rehman. On the night of incident at 11-45 p.m. He had gone to the quarter of his brother Ali Rehman, where he saw Ali Rehman and his brother Saeedur Rehman and Abdullah talking to each other outside the house. While he was talking to his brother's house, he heard commotion and on coming out be saw accused Amin having a Chhuri in his hand inflicting injuries to Ali Rehman. The place of incident given by him is at the door of Ghosia Mosque near their house. He stated that there was electric light at the place of incident and while he went near Ali Rehman, accused had escaped. At that time All Rehman was in senses and on enquiry by P.W. Muhammad Sharif as to what had happened, All Rehman told them that accused had caused him injuries with dagger. The injured was taken to Civil Hospital where he succumbed to his injuries. His statement under section 164, Cr.P.C. Is Exh.6-A. In cross-examination a number of questions . Were put to him with regard to the additions and omissions made in his 161 and 164, Cr.P.C. Statements. He admitted in cross that when P.W. Muhammad Sharif came, accused Amin had run away. He admitted that there was no bulb at the place of incident. He admitted that his 164, Cr.P.C. Statement was recorded after about 10 days of incident. He also admitted that when he came out of the house of Ali Rehman on hearing cries, he saw Saeedur Rehman and Abdullah at the place of incident.
' P.W.6 Saeedur Rehman Exh.7 is also the brother of deceased. He stated that on the night of incident at 11-45 p.m., he and Abdullah were standing at the corner of mosque when they heard voice of his brother "save me, save me". He went near and saw accused Amin near the turn of mosque saying to Ali Rehman that since he had quarrelled with him and he insulted him a day before, he would take revenge. Accused Amin inflicted knife injuries to Ali Rehman, which was witnessed by him and P.W. Abdullah. He also stated that several people had collected on their cries and by that time Sabir Rehman also came. Accused then ran away waiving Chhuri in his hand. The injured was carried in a rickshaw to Civil Hospital. The police arrived and recorded his statement in hospital. Police arrested accused in his presence from Munir Hotel Railway Colony and secured a dagger from the folds of his trouser and prepared a Mashirnama Exh.7/A, which he signed as. a witness. He produced the inquest report Exh.7-B. His statement under section 164, Cr.P.C. Was also recorded. He also produced the sketch of dagger Exh.7-C. In cross-examination he stated that there were 8-10 police persons at the time of arrest of accused, some of whom were policemen and some from public. He denied that he stated in his 164, Cr.P.C. Statement that he and Abdullah were in the quarter of Ali Rehman when they heard cries. He admitted that before their arrival some persons had collected. He stated in cross-examination that accused was arrested from inside hotel where he was concealing. An important admission made by him in cross-examination is that after he reached police station, he accompanied police to apprehend the accused, who was arrested by police from hotel on same night and recovered weapon used in the offence. He specifically denied that accused was arrested from hotel during day time. His 164, Cr.P.C.
Statement is on record Exh.7-A.
' P.W.7 Sher Bahadur Exh.8 was sleeping outside house and was awakened on hearing the cries of Sharif who was shouting that Amin had murdered All Rehman. He went to Civil Hospital wherefrom dead.Body was brought.
' P.W.8 Dr. Nisar Mangi produced Medical Certificate of Ali Rehman Exh.10/A issued by Dr. Taqi, whose whereabouts were not known and had left the hospital. I Te produced post-mortem report Exh.10/B and cause of death report Exh.10/C. He stated that he was conversant with the handwriting and signatures of Dr. Taqi. Exh.10/B shows 12 incised injuries on deceased Ali Rehman. Cause of death is haemorrhage and irreversible shock as a result of multiple stab wounds on chest and abdomen.
' P.W.9 Muhammad Siddiqui Tariq Exh.14 was S.H.O. Mithadar Police Station. He was at his house when Mirza Khan Constable informed him that telephone was received from Civil Hospital regarding arrival of injured All Rehman. He went to Civil Hospital and found injured dead. He prepared inquest report and Mashirnama of dead body Exhs.2/B and 2/C in presence of Mashirs Abdullah Khan and Saeedur Rehman. Statement of Abdullah Khan was recorded under section 154, Cr.P.C. As Exh.2/C. F.I.R. Exh.15 was registered on the basis of Abdullah's statement. He prepared memo of Wardat Exh.2/D. He recorded statement of P.Ws. And at 11-30 on the same day, arrested accused from Muneer Hotel under Mashirnama Exh.7/C. On search, a Khanjar was recovered from the possession of accused. The weapon was of prohibited measurement, for which accused had no licence and a separate case under section 13-D, Arms Ordinance was registered as Crime No,78/81 Exh.16. He secured blood-stained clothes of accused under memo. Exh.17 which he sent alongwith dagger to chemical analyser for report. He also produced a list of cases against accused Amin as Exh.19. The dagger in Court Article 'A' was shown to him and he stated that "it was not the same secured from accused and some one changed this weapon. After his cross- examination was over, he was recalled and reaffirmed and shown dagger article 'A' and he answered that it was the same recovered from accused. In cross-examination he denied that he arrested accused in the darkness of night.
' Statement of accused under section 342, Cr.P.C. Exh.22 was recorded and he denied allegations against him. With regard to his involvement in 5 other criminal cases, he stated that he was involved only in one case by Railway Police. He was examined on oath vide Exh.23 and he stated that P.Ws. Were inimical to him and have falsely involved him in the case. He also examined one Muhammad Munir in his defence (D.W.1 Exh.24). He is the owner of hotel from where accused was allegedly arrested. He denied arrest of accused from his hotel at night time.
5. Mr. A.Q. Halepota, the learned Advocate for the appellant contended:-
(a) that F.I.R. Is recorded after preliminary investigation and it is to be ruled out of consideration;
(b) that it is recorded after due deliberations, giving names of close relations of deceased as eye- witnesses which makes the contents of F.I.R. Doubtful;
(c) that eye-witnesses Abdullah, Sabir Rehman and Saeedur Rehman are closely related to deceased, they had not witnessed the incident and their evidence does not inspire confidence;
(d) that evidence of P.W. Mushtaque and Muhammad Sharif is not worthy of belief, because in view of injuries sustained by deceased, it was impossible for him to speak or give name of assailant;
(e) that evidence of recovery of dagger is false for the reason that there is contradiction between evidence of Mashir Saeedur Rehman and I.O. Muhammad Siddique regarding time of arrest and recovery from appellant;
(f) that recovery is also to be discarded on the ground that Mashir is close relation of deceased;
(g) motive could not be as the one shown but it must be different and whosoever the assailant, must have had a deep-rooted reason for causing murder; the evidence regarding motive is even otherwise an afterthought. Evidence of motive has not come from any independent source.
6. It is contended that the F.I.R. Was recorded after preliminary investigation and unwitnessed incident is shown to have been witnessed by P.W. Abdullah and others who are close relations of deceased. The learned Advocate placed reliance on Muhammad Siddique v. The State PLD 1958 (W.P.) Lah. Page 601 and at page 608 it was observed. "This Court had had occasion in several cases to remark that in view of the prevalence of objectionable practice of not recording the first information reports at the police station, because the Thanedar conveniently happens to be present somewhere in the vicinity, the inference is unavoidable that in fact the first information report was recorded at the place of occurrence after preliminary investigation by the Investigating Officer". He also placed reliance on Ghulam Qadir v. The State PLD 1967 Pesh. 269 where it was held that "the first information report recorded at place other than police station, the inference was unavoidable that it was recorded after preliminary investigation and evidence of witnesses named in such report was not believed".
' It was next contended that the F.I.R. Was lodged after due deliberations giving names of close relations of deceased as eye-witnesses, and this makes the contents of F.I.R. Doubtful. Admittedly, other persons were attracted on the cries of deceased as well as P.Ws. Abdullah and Saeedur Rehman, but they are not named to be the eye-witnesses, for the simple reason that none had witnessed the incident.
' It is contended that mere mention of names of related witnesses in F.I.R. Would not constitute corroboration. In support of his contention the learned Advocate placed reliance on Gahno and 4 others v. The State PLD 1964 (W.P.) Kar. 437, where it was observed that "mere mention of names in F.I.R. Does not constitute corroboration of ocular evidence against accused. Basing conviction on evidence without some corroboration would be unsafe". According to the learned Advocate, the corroboration to ocular testimony should have come from independent and non-partisan witnesses, rather from unimpeachable sources whereas entire evidence is based on ocular testimony which is discrepant in nature, the conviction should not have been recorded and it would be safe to extend benefit of doubt to accused. Reference is made to Rehmat and others v.
The State PLD 1959 SC (Pak.) 109 and relevant observation on page 118 is as under:-- "When the evidence of the eye-witness is examined in the light of all the circumstances which we have enumerated, a possibility clearly arises that the implication of some or all of the 11 persons accused in the case was based, not upon direct knowledge of their participaton, but upon conjecture aided by the motive of revenge. Where the entire case rests on ocular evidence which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye-witness fixed specific part in the accomplishment of the crime."
' The learned Advocate then contended that the nature of injuries on the person of deceased is suggestive of the fact that it was not possible for the deceased to have spoken to the witnesses or given the name of assailant. Moreso, P.W. Ismail who was an independent witness attracted on the cries, does not support P.Ws. Abdullah and Sabir Rehman that accused inflicted dagger blows to deceased or that deceased informed that accused Amin had given him injuries.
' The recovery of alleged crime weapon from accused has become doubtful for the reason that P.W.6 Saeedur Rehman who was with the police, and acted as a Mashir has stated that the accused was arrested from hotel on same night of incident. The exact words are "I do not remember time of arrest of accused, but at the time of arrest of accused it was dark in hotel. There was street light outside the hotel". He has also stated "police arrested accused from hotel on same night and recovered weapon used in offence". The Mashirnama of arrest (Exh.7/C) shows the time of arrest as 11-20 a.m. Which is day time.
' The arrest and recovery also become doubtful as the D.W. Muhammad Munk Exh.24 has stated that he opened his hotel usually at 7-30 a.m. And closed by 10-00 p.m. And accused sitting in hotel was not arrested by the police from his hotel at night time in his presence. Besides, Mashir Saeedur Rehman is the real brother of deceased and his evidence, though not helpful to prosecution, yet cannot be relied upon in a case involving capital charge. Reliance is placed on Lalan and 2 others v. The State 1976 P Cr. L J 52. Reliance is also placed on Ahmed and another v. The State 1977 P Cr. L J 662 and Muhammad Nasim v. The State 1981 P Cr. L J 1292.
' It is next contended that the evidence of motive has come through interested witnesses and not from independent source. Such evidence could not have any corroboratory value. Reliance in this respect is placed on Rasobl Bix and another v. The State 1980 SCMR 225 where it was observed that "evidence of motive for crime, flimsy and coming from mouth of same witnesses whose evidence sought to be corroborated by motive, hence of no corroboratory value".
' It is lastly contended that medical evidence and motive could not corroborate ocular evidence.
Reliance is placed on Humayun v. The State 1987 SCMR 914 and Machia and 2 others v. The State PLD 1976 SC 695.
' Mr. A.G. Mangi, Additional Advocate-General assisted by Mr. M. Ilyas Khan, Advocate, supported the judgment of trial Court. It is contended that F.I.R. Was lodged without delay, the witnesses are independent and no ulterior motive is shown for wrong implication of accused. The contradiction in the recovery and arrest on the point of time, is minor. P.Ws. Ismail, Sharif and Mushtaque are independent and residents of same locality.
' It is also contended that mere relationship of P.Ws. Abdullah, Saeedur Rehman and Sabir Rehman with deceased, would not render their evidence untrustworthy. In support of this contention, reliance is placed on (1) Muhammad Latif v. The State 1990 P Cr. L J 1504, (ii) Muhammad Hussain v.
The State 1%9 SCMR 64, (iii) Khan Badshah and others v. The State 1989 P Cr. L J 2270 and (iv)
Naseer Muhammad v. The State 1985 SCMR 60.
' It is also contended that there may be absence of proof of motive but that will not justify rejection of evidence, which is otherwise reliable. Reliance in this regard is made on Mirza Khan v. The State 1984 SCMR 1006, where it was observed:-- "It is not always possible or necessary for prosecution to prove the motive of the accused in committing a crime and in the absence of any proof of motive, it is not in itself sufficient to justify the rejection of evidence which is otherwise reliabe. But if the motive is falsified, the accused in a case as in hand, would be entitled to lesser punishment."
' It was lastly contended that the appellant is a criminal by nature, as is obvious from the history of various cases against him. In the case in hand, on 23-7-1989, when the case was fixed for judgment, appellant absconded and was arrested on 7-8-1989. He had the motive for committing murder of Ali Rehman, who had reprimanded him previous evening.
7. We have heard the learned Advocates at length, perused the evidence and case-law. We have also gone through the judgment of trial Court. We would like to dilate upon various pieces of evidence against appellant, first of these is ocular testimony of P.Ws. Abdullah, who is the brother- in-law of deceased, Saeedur Rehman, borther of deceased, Sabir Rehman, another brother of deceased, Mushtaque Rickshaw driver of P.W. Saeedur Rehman, Muhammad Sharif and Ismail, both residents of locality and can be said chance witnesses. The time of incident is 11-45 p.m. When deceased is stated to have left his house for going to adjoining mosque to offer Isha (Qaza) prayers. At that time there was no occasion for complainant and P.W. Saeedur Rehman to follow him towards mosque. But a new story was introduced at the trial that because accused Amin had a scuffle with deceased on the previous evening, it was apprehended that accused may not harm deceased All Rehman and therefore, both Abdullah and Saeedur Rehman followed him and were standing at the corner of mosque, when the incident took place. This is improvement upon the F.I.R.
(by Abdullah) and 161, Cr.P.C. Statement of Saeedur Rehman. It is worth mentioning that P.W.
Saeedur Rehman admitted in cross-examination that before their reaching, some persons had collected. It is manifestly clear that neither complainant Abdullah, nor P.W. Saeedur Rehman had either followed deceased, or they were at the corner of mosque when incident occurred. They seem to have been in the house of deceased and may have been attracted on cries of deceased, by which time the assailant must have escaped.
8. P.W. Sabir Rehman who is brother of deceased was inside the house of deceased, talking to his sister when he came out on hearing commotion. He stated that he had witnessed the incident and seen accused giving blows to deceased. He also stated that P.W. Muhammad Sharif who was also attracted made enquiry from deceased Ali Rehman as to what had happened, upon which deceased stated that Amin had caused him. Injuries with dagger. But in the last line of cross- examination, P.W. Muhammad Sharif clearly deposed, "deceased Ali Rehman did not tell me that Amin had stabbed knife to him". Thus, the version given by P.W. Sabir Raman that Muhammad Sharif talked to deceased who informed that Amin inflicted blows to him is falsified.
9. P.Ws. Mushtaque, Ismail and Sharif are chance witnesses and are said to have been attracted on cries. The rickshaw of Mushtaque is driven by Saeedur Rehman and, therefore, Mushtaque had a reason to oblige him. P.W. Ismail stated that he had seen accused to have caught hold of collar of deceased. This version is not given by either complainant or Saeedur Rehman who were standing close-by. P.W. Sharif reached and saw deceased lying in a pool of blood. The perusal of his evidence shows as if he was the first man to reach, he could ask others who had already collected there as to what had happened, rather than asking injured Ali Rehman, who was in a state of agony.
10. The ocular evidence is not only discrepant but also unworthy of credit. In any case, it is full of infirmities and contradictions creating doubt, particularly for the reason that there was no light at Wardat but light was coming from adjoining houses. The incident occurred at mid-night and the mistaken identity of assailant cannot be ruled out.
11. Statement of P.W. Abdullah under section 154, Cr.P.C. Is allegedly recorded by S.H.O. In the hospital. No time is mentioned in that statement and only date 13-6-1981 is given. This, read with the statement of P.W. Abdullah that after injured died, P.Ws. Mushtaque and Saeedur Rehman went to Police Station Mithadar and brought police, which fact is denied by S.H.O., creates doubt regarding the correctness of 154, Cr.P.C. Statement of Abdullah. It may have been recorded after due deliberations, giving names of close relations of deceased as eye-witnesses.
12. The other piece of evidence regarding motive is also not confidence inspiring. If deceased had reprimanded accused previous evening, there is nothing on record that accused had known that deceased would be going to mosque at about 12 mid-night, as it was not the daily routine of deceased to go at that time to mosque. The motive could be considered if otherwise it is conclusively accepted that ocular testimony is unimpeachable, which as discussed above, is discrepant and doubtful, Besides, the evidence of motive has not come through independent source and it cannot be relied upon for sustaining conviction. The arrest and recovery is shown to be at 11-20 (Exh.7/C), whereas Mashir Saeedur Rehman has given the time to be before sunrise, and while it was dark.
13. The third piece of. Evidence is recovery of blood-stained dagger from accused. This is most doubtful for the reason that Mashir P.W. Saeedur Rehman gave the time of arrest to be before sunrise while it was dark and Mashirnama (Exh.7/C) shows the time of arrest and recovery at 11-20, which is day time. We have either to believe the Mashir or the document Ex.7/C. In that case the recovery evidence regarding crime weapon becomes highly doubtful and it cannot lend any support to ocular testimony. The evidence of D.W. Muhammad Munir can also not be ignored, who stated that accused was not arrested from his hotel during night time. Independent Mashir Sher Gul to Exh.7/C has not been examined and instead, prosecution remained satisfied with examining P.W. Saeedur Rehman, brother of deceased, admittedly an interested witness. In the circumstances, recovery evidence was of no value and could be ruled out of consideration.
14. We agree with the learned Additional Advocate-General that evidence of witnesses could not be rendered untrustworthy because it has come from related witnesses. It is also true that absence of motive would not justify rejection of evidence. But in the case in hand, we have already held the ocular evidence as being discrepant and unbelievable, not because it came from related witnesses but also because of inherent defects in it, making the whole version improbable. In the instant case we have not only discarded ocular testimony but also evidence of motive.
15. Case against accused was not proved beyond all reasonable doubt. The conviction on a capital charge therefore, cannot be sustained. We extend benefit of doubt to appellant. The appeal is, therefore, allowed, conviction and sentence is set aside and we direct his acquittal. The reference for confirmation is declined.