' Appellant Sujawal Hussain was tried by Mr. Muhammad Aslam Shaikh, Vth Additional Sessions Judge (South) Karachi, for the offence under section 302, P.P.C. Who found him guilty and vide judgment, dated 29th February, 1992, sentenced him to imprisonment for life and to pay a fine of Rs,5,000 or in default to suffer R.I. For two years. He was also directed to pay a compensation of Rs,5,000 to legal heirs of deceased Mst. Zarina under section 544-A, Cr.P.C. By this appeal filed under section 410, Cr.P.C. The appellant has challenged his conviction and sentence.
2. The case of the prosecution as unfolded in F.I.R. Lodged by Muhammad Mushtaque at Mahmoodabad Police Station on 22-5-1986 at 5-10 p.m., under section 302, P.P.C. (Crime No,172 of 1986) is as under:-- "I reside at the above-mentioned address (House No,163, Lane No,2, Sector B, Akhtar Colony, Karachi), and I am employed at Shipyard. Today in the morning I left for duty at 5-30 a.m. Leaving my wife Mst. Zarina Bibi id the house. At about 4 p.m. When I returned to my house I found the main door bolted from outside. I opened the door and went inside the house where I found the doors of both the rooms lying open and my wife Mst. Zarina Bibi lying dead in a pool of blood having a deep wound on the left side of her neck. I raised cries which attracted so many persons. I do not have enmity with anyone. I have come for report. My complaint is against the unknown person for committing murder of my wife Mst. Zarina Bibi by inflicting sharp-edged weapon blow on the neck due to unknown reasons. Action may be taken."
3. Muhammad Latif S.I.P., Mehmoodabad Police Station took up the investigation. He proceeded to the scene of occurrence and inspected it in presence of Mashirs Ch. Abdul Majeed and Khadim Hussain. The Police Officer then held inquest in respect of deceased Mst. Zarina and despatched her dead body to Jinnah Post-Graduate Medical Centre, Karachi, for postmortem examination. He also recorded the statements of Jehangir, Khadim Hussain, Ch. Abdul Majeed, Mst. Nasim Akhtar and others. No progress was, however, made in the case. The investigation then changed hands.
During the course of investigation the appellant, an employee of Pakistan Railways was arrested from Lahore and after usual investigation he was sent up to stand trial.
4. At the trial the prosecution examined Mst. Nasim Akhtar (P.W.1), Muhammad Iqbal (P.W.2), Muhammad Mushtaquc (P.W.3), Khadim Hussain (P.W.4), Muhammad Yameen, Inspector (P.W.5), Muhammad Latif S.I.P. (P.W.6), Muhammad Abrar A.S.I. (P.W.7) and S.M. Jafri (P.W.8).
5. The appellant met the charge with the denial. He has taken the plea of alibi by stating that he was on duty at Lahore on the relevant date and time. The appellant has examined himself on oath.
He has also examined Muhammad Aslam Anwar (D.W.1), and Nazir Ahmad (D.W.2), both railway employees, in his defence.
6. On the assessm ent of evidence available on the record the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly, hence the present appeal.
7. I have heard Mr. Muhammad Asghar Khan, learned counsel for the appellant and Mr. Abdul Hakeem Bijarani, learned AA.-G. For State. I have also gone through the record of this case carefully.
8. The fact that Mst. Zarina was murdered by means of a sharp-edged weapon is not in dispute.
Besides other evidence on this point S.M. Jafri (P.W.8) has produced the post-mortem report (Exh.16) prepared by Dr. Ghafoor Soomro who had gone abroad, which confirms that deceased Mst. Zarina who had three incised wounds died due to cut throat.
9. The case of the prosecution against the appellant hinges upon the solitary testimony of Mst.
Nasim Akhtar (P.W.1), who was staying in the house of her brother Muhammad Mushtaque during the days when this incident took place. The evidence of Mst. Nasim Akhtar (P.W.1) shows that she alongwith Samreen were present in the house of Muhammad Mushtaque when an unidentified person came there who was brought inside the house by deceased Mst. Zarina, who then asked both of them to go to the house of Mst. Taj Bibi and it was obvioiusly thereafter that Mst. Zarina was murdered. Admittedly Muhammad Mushtaque lodged F.I.R. (Exh.8/A) after meeting both Mst, Nasim Akhtar (PM.] ) and Samreen (not examined). The above facts, however, do not find any place in the body of F.I.R., and this omission in my view appears to be significant. Even otherwise according to the description of the stranger who had come to the house of complainant Muhammad Mushtaque he was a different person. Muhammad Mushtaque (P.W.3) has hismelf admitted this position in the following words:-- "I have stated in my police statement recorded by C.IA. Police on 24th day of May that Naseem Akhtar had disclosed the description of that man as he was of black colour having the marks of smallpox on his face, wearing the clothes of Badami colour and he had some cloth in his under arm. I see accused Sujawal present in Court and say that he has no marks of smallpox on his face nor his colour is black."
10. Muhammad Yameen, Inspector (P.W.5) has also stated in clear terms that Mst. Naseem Akhtar had stated before him that the person who had visited the house of Muhammad Mushtaque had marks of smallpox on his face. The testimony of Muhammad Yameen, Inspector (P.W.5) further reveals that Mst. Jan Begum was the only person who had suspected the present appellant, which ultimately led to his arrest Mst. Jan Begum was, however, not examined as witness for the prosecution. Thus, the case of the prosecution mainly revolves upon the testimony of Mst. Nasim Akhtar (P.W.1) who for the reasons mentioned above is not a reliable witness. It is again an admitted position that the identification test of the appellant was held after Mst. Nasim Akhtar (P.W.1) had seen him. Mst. Nasim Akhtar (P.W.1) has herself admitted this position in the following words:-- "I was informed by police after the arrest of accused that he is the culprit of murder. I was called at Police Station Mahmoodabad, Karachi, where the accused was shown to me by police just after arrest."
11. This fact alone makes the evidence of Mst. Nasim Akhtar (P.W.1) worthless. It would be highly dangerous to act upon such evidence. In fact if the witness had already seen the accused, holding of identification test would be an entirely farcical affair.
12. The appellant had taken the plea of alibi from the very outset. Complainant Muhammad Mushtaque (P.W.3) has admitted about it in the following words:-- "Police informed me that the accused was present on his duty at Lahore as per record and he signed on the duty register on the day of incident."
13. Muhammad Yameen, Inspector (P.W.5) has also testified about this plea in the following words:- - "It is correct to say that according to the reply of the Railway Authority accused Sujawal was on duty on 22 5-1936. I did not make any further verification whether accused Sujawal was on duty on 22-5.1986 or not and I did not examine any railway person about the absence or presence of accused on 22-5-1986."
14. Muhammad Abrar, A.S.I. (P.W.7) who had arrested the appellant from Lahore has also admitted that immediately after his arrest the appellant had informed him that he was on duty at Lahore on the day of incident.
15. The appellant has further testified about his plea of alibi in his statement recorded under section 340(2), Cr.P.C. On oath. His version gets support from Muhammad Aslam Anwar (D.W.1), and Nazir Ahmed (D.W.2), both railway employee, who have also produced the relevant record. The entire oral and documentary evidence adduced by the appellant in his defence was discarded by the learned Additional Sessions Judge for the simple reason that the relevant entry appeared to be doubtful. Even if it was so, the conviction is certainly not to be based on the weakness of the defence.
16. As a result, therefore, of this unsatisfactory state of evidence in this case I find myself unable to uphold the conviction of the appellant and giving him the benefit of doubt, I set aside his conviction and sentence and would direct that he be set at liberty, if not wanted in any other case.
The appeal is accordingly accepted and the impugned judgment is set aside.
17. By a short order dated 4-6-1992 I had allowed this appeal and these are the reasons for the said order.