1. ' This appeal is directed against the judgment, dated 16-5-1993, passed by the 3rd Additional Sessions Judge, Karachi-East, whereby the appellant haseen convicted in Sessions Case State v.
2. Fahimuddin and another No,519/90 under section 302/34, P.P.C. Registered at Police Station Malir Extension, as Crime No,94/90 and sentenced to imprisonment for life and to pay a fine of Rs,10,000 to the legal-heirs of the deceased or in default thereof to undergo R.I. For one year more. Briefly stated the facts which give rise to this appeal are that on 20-6-1990 at 00-10 hour complainant Muhammad Shakeel lodged his above referred F.I.R. As under:-- "I am residing at the above address and do tailoring work. On 19-6-1990 when at about 10-30 p.m. I was present at home Mohalla boys came and told that one Fahimuddin stabbed my brother Aqeel aged about 20/22 years at the left side with a knife at double story School Ground, on some money matter due to which he is seriously injured. I took him to the Jinnah Hospital in a taxi, but Aqeel died on the way. I brought dead body to police station after it was checked by the doctor. This incident was witnessed by the people who were present there. Report made for taking legal action. I claim that my brother Aqeel has been murdered by knife blows. Report is read over and affirmed correct."
3. ' After lodging the report by the complainant, Sub-Inspector Muhammad Ismail prepared the inquest report and memo. Of inspection of dead body in presence of Mashirs: The dead body was then dispatched to Police Surgeon for post-mortem examination. The site was then inspected in presence of Mashirs Muhammad Rafiq and Muhammad Shakeel Such memo. Was also prepared.
4. The blood-stained clothes were secured and sent to Chemical Examiner for report. The statements under section 161, Cr.P.C. Of the witnesses, namely, (1) Akram Hussain, (2) Muhammad Rafique, (3)
5. Rahib, (4) Muhammad Javed and (5) Muhammad Arif were recorded. The accused Fahimuddin and Abdul Ghaffar were then arrested by the Sub-Inspector Muhammad Ismail and on the potation of accused Fahimuddin-the crime weapon was secured from a Juggi. The same was sealed in presence of the Mashirs. After completing the investigation the accused were challenged.
6. They pleaded not guilty to the charge and disowned the allegations of prosecution.
7. ' In support of its case the prosecution examined complainant Muhammad Shakeel (P.W.1) as Exh.5, who produced F.I.R. As Exh.6, Inquest Report as Exh.7, Mashirnama of dead body as Exh.8, Mashirnama of securing bloodstained clothes of deceased Muhammad Aqeel as Exh.9, Mashirnama of arrest of accused Fahimuddin as Exh.10, Mashirnama of arrest of accused Abdul Ghaffar as Exh.11, and Mashirnama of site inspection as Exh.12. P.W.2 Akram Hussain (Exh.13), P.W.3 Muhammad Javed (Exh.14), P.W.4 Inspector Rab Nawaz (Exh.15), P.W.5 Muhammad Rafique (Exh.16), P.W.6 H.C. Abdul Majeed (Exh.17), who produced the memo. Of recovery of knife as Exh.18 and P.W.7 H.C. Pir Bux (Exh.19). Mashir Mustaqeem was given up by the learned counsel for the State vide Exh.20. C.W.1, H.C. Abdul Latif process server (Exh.21) who stated that P.Ws. Muhammad Arif son of Ghulam Jaffer and Rajoo son of Mohabat Khan Pathan are not traceable. P.W.8 Muhammad Ismail Khan (Exh.28), who produced receipt of handing over the dead body to the complainant as Exh.29, letter, dated 20-6-1990 addressed to M.L.O. Jinnah Hospital by him for conducting post-mortem as Exh.30 and report of Chemical Analyzer as Exh.31 and P.W.9 Dr. Abdul Razzak (Exh.32), who produced the M.L.O:No,2641/90 as Exh.33 and post-mortem report as Exh.34.
8. ' Statement of accused persons under section 342, Cr.P.C. Was recorded as Exhs.35 and 36, wherein they denied the allegations of prosecution. However, neither they examined any witness in their defense, nor examined themselves on oath.
9. ' The learned 3rd Additional Sessions' Judge, Karachi East, convicted the appellant Fahimuddin son of Naeemuddin under section 302, P.P.C. And sentenced him to suffer imprisonment for life and to pay fine of Rs,10,000 to the legal heirs of the deceased or in default to suffer further imprisonment for one year while acquitted the co-accused Abdul Ghaffar son of Abdul Jabbar under section 265-H, Cr.P.C. After determining the following points::- "0) Whether the deceased Muhammad Aqeel died an unnatural death?
(2) Whether the accused in furtherance of their common intention committed murder of deceased Muhammad Aqeel?
(3) What .Offence has been committed by the accused?"
10. ' No revision has been filed against the acquittal of co-accused Abdul Gaffer nor for enhancement of the sentence of accused Fahimuddin.
11. ' The main contentions of the learned counsel for the appellant/accused are that co-accused Abdul Ghaffar has been acquitted on the same set of evidence; that no name of the eye-witness has been mentioned in the F.I.R.; that the complainant has given complete goby to the F.I.R. And the complainant who is the real brother of the deceased is Mashir in 12 Mashirnamas; that the main witness, taxi driver, Rajoo Khan Pathan has not been examined; that there is no cut on the clothes of the deceased of the knife mentioned in Mashirnama (Exh.9) so also on the person of the dead body in Mashirnama (Exh.8); that no blood was secured from the scene of offence; that the name of the eye-witness Akram Hussain does not appear in the F.I.R.; that the name of witness Muhammad Javed does not appear in the F.I.R. Nor at the stage of examination of the complainant; that there is material contradictions between the evidence of P.W. Muhammad Javed and Akram Hussain; that P.W. Muhammad Javed is also the real brother of the deceased and he was examined after 4/5 days; that Mashir Muhammad Rafique states that all the Mashirnamas signed by. Him were prepared at police station; that the production of Kuph (a knife type) was made from a Juggi which was not in exclusive possession of the accused and there was no blood on Kuph; that there are also material contradictions between the evidence of P.W. Pir Bux and P.W. Abdul Majeed; and that no local people from the area of Juggi were made Mashir though admittedly two persons were there in the Juggi and also it is a thickly populated area. Learned counsel for the appellant/accused has also argued that according to the doctor rigor mortis was fully developed and, according to him, this incident has taken place much earlier and no one had witnessed it; that P.W. Muhammad Rafique has not supported the case of the prosecution; that there is material contradiction in the evidence of the complainant as, on one hand, the complainant stated that he took the dead body to the hospital and, on the other hand, he stated that he took the dead body to the police station; that the statement of Dr. Khalid has not been recorded; that the present accused was arrested from Hotel Mehran though the owner and 2/4 persons were present at the time of the arrest but none of them has been examined; that there is also material contradiction in the statement of Dr. Abdul Razzak as according to him he received the dead body of Muhammad Aqeel and informed the Police Station Malir Extension, rigor mortis has developed, there is a gap of 3/4 hours in the time of death and post-mortem and he received the dead body at 11-05 p.m. While the incident has taken place, as shown, at 10-30 p.m. And the report is made on the next day i,e, 20-6-1990 at 12-10 a.m.; that the doctor contradicts the statement of the Investigating Officer Muhammad Ismail Khan, as according to him the complainant came with the dead body; that the name of the co-accused Abdul Ghaffar does not appear in the F.I.R.; that the incident took place on 19-6-1990 while the letter was written by the S.H.O. To the Chemical Analyser on 3-7-1990 and the same was received by the Chemical Analyzer on 19-7-1990; that, according to him, the delay has not been explained as such it loses the evidentiary value. Lastly, he has argued that the knife so secured was not brood-stained and P.W.
12. Muhammad Javed being the real brother of the deceased was examined after 7 days and has given a different story to that of the complainant and has tried Jo improve the case of the prosecution. In support of his contentions learned counsel has placed reliance on Muhammad and another v.. The State 1991 PCr.LJ 761, Khalid Zaman v. The State 1992 PCr.LJ 2289 and Iqbal Masih v.
13. The State 1995 PCr.LJ 231.
14. ' Mr. Habib Ahmed, learned counsel for the State, has argued that the incident has taken place on 19-6-1990 at 10-30 p.m. While the report was made on the next day at 12-10 a.m., after the lapse of 2-1/2 hours. According to him, the delay has been explained as firstly the injured was taken to a private clinic and then to the Jinnah Hospital. According to him, there is no false implication and the name of the present appellant/accused appeared in the F.I.R. He has argued that the complainant Muhammad Shakeel has explained the delay in lodging the F.I.R.; that the P.W. Akram Hussain is an independent and natural witness as he is the resident of the same locality and his evidence is unchallenged, that P.W. Muhammad Javed, the brother of the deceased has also implicated the co-accused Abdul Ghaffar; that the present appellant/ accused Fahimuddin in reply to a question put to him in his 342, Cr.P.C. Statement has stated that the deceased was my friend and due to suspicion I was involved in this case. Lastly, he has argued that it was a sudden fight and there was, no intention as such the learned trial Court has already taken lenient view as there is only one injury caused to the deceased by a weapon used to cut leather.
15. ' I have also heard Mr. Anwer Jamal, learned counsel for the complainant, at length though no revision was filed. He has argued that the F.I.R. Is lodged by a person who was not an eye-witness as such the name of the witnesses are not given. On this point he has relied on Asif Jang and 2 others v. The State PLD 1978 Lah. 1285, State v. Naseer Ahmad PLD 1986 SC (AJ&K) 35, Rasool Blix and another v. The State PLD 1964 (W.P.) Quetta 6. He has also relied upon Qasim and others v. The State PLD 1967 Kar.
233. He has further argued that mere relationship to the deceased does not bar to become a witness and the relations are as good witnesses as others. On this point, he has relied on Muhammad Rafiq v. The State 1981 PCr.L1 1304, Yousif v. The State PLD 1981 Kar. 672, Muhammad Aslam and another v: The State PLD 1968 Lah.
964. He has argued. That the prosecution is not bound to examine all the witnesses and minor contradictions are not helpful to the accused at this stage. On this point he has placed reliance on Ahmad and 4 others v. The State 1968 PCr.LJ 386. Further he has contended that particular point can be disbelieved, but not the whole story for which he relied on .PLD 1962 (W.P.) Lah.
58. He has submitted that during those days there was curfew as such police could not examine the witnesses in time. Lastly, he has argued that it is not necessary to take the person of the locality at the time of recovery for which he has relied on Sundar Singh v. The State of Uttar Pradesh PLD 1956 SC (Ind.) 30, 1995 SCMR 614 and 693 and has supported the conviction.
16. ' 'I have heard Mr. Shaikh Mir Muhammad, learned counsel for the appellant, Mr. Habib Ahmed, learned counsel for the State and Mr. Anwer Jamal, learned counsel for the complainant and have also gone through the record.
17. ' The complainant who is real brother of the deceased has stated in the F.I.R. That he was at home when at about 10-30 p.m. On 19-6-1990 some Mohalla boys came and told that one Fahimuddin has stabbed his brother Muhammad Aqeel, aged about 20/22 years at the left side with a knife and as such he took the injured in a taxi but the deceased. Died on the way. According to him, this incident was witnessed by the people who were present there but no name has been given. There are material contradictions between the evidence of doctor who performed the post-mortem and the Investigating Officer and the witnesses as according to the doctor he received the dead body at about 11-05 . p.m. And informed the Police Station Malir Extension while the complainant Muhammad Shakeel who is, real brother of the deceased has stated that when the Mohallah boys informed him that Fahimuddin has murdered his brother Aqeel by giving him knife blows he went to the house of his brother Rafique and with him went to the clinic of Dr. Khalid where he found that the dead body of Ai:Fel was lying on .a bed and the doctor advised him to take the dead body to the J.P.M.C. As such he took the dead body in a taxi to Jinnah Hospital. There is also material contradiction between the evidence of Dr. Abdul Razzak, Muhammad Shakeel and the Investigating Officer Muhammad Ismail Khan, Investigating Officer has stated that the complainant brought the dead body at police station while the doctor says that he informed the Police Station Malir Extension. According to Investigating Officer, he took the dead body to the Jinnah Hospital along with the complainant and others. This version is belied by the evidence of the complainant as well as by Dr. Abdul Razzak. There. Is no name of the witnesses in the even the complainant has not said who has informed him as according to him, some Mohallah boys came and informed him. There is no motive as to why accused Fahimuddin committed murder of deceased. On the other hand, the accused has stated in his 342, Cr.P.C. Statement that the deceased was his friend and his name has been given due to suspicion. The complainant who is real brother of the deceased has given complete gobye to the F.I.R. He is also .Mashir of all the twelve (12) Mashirnamas. It is very strange to note that the Mashirnamas (Exh.8 and 9), inquest report and Mashirnama of securing of the clothes of the deceased do not show any cut on the clothes of the decade. It is strange and unbelievable that if the injury is caused from sharp side of a weapon, how it penetrated the body without cutting the clothes. The complainant has stated in his deposition that he went to the house of Rafique Bhai and with him went to the Clinic of Dr. Khalid, but P.W. Rafique does not support the complainant. On the other hand, he says that he signed the Mashirnamas of inquest report, clothes of deceased and place of Wardat. According to him, these Mashirnamas were prepared at police station and he signed them at police station. The report of the Chemical Analyzer cannot be relied which is in respect of Shalwar, shirt and Banyan of the deceased as the incident took place on 19- 6-1990 and the S.H.O. Sent the same on 3-7-1990 which was received by the Chemical Analyzer on 19-7-1990 as such they were lying in the police station for about a month. The prosecution has failed to establish the guilt of the accused. On perusal of the evidence it reveals that the witnesses belie each other and do not get support from any other piece of evidence. The co-accused has already been acquitted on the same set of evidence. The prosecution has miserably failed to bring the guilt of the accused at home.
18. ' The appeal is, therefore, allowed, conviction and sentence of the appellant are set aside and he is acquitted of the charge. He shall be set at liberty forthwith, if not required in any other case.