1. ' Appellants Imtiaz Hussain alias Kaka and Iftikhar Ahmed were tried along with acquitted co- accused Akhtar Ali for the offence under sections 302 and 307/34, P.P.C. By the learned 1st Additional Sessions Judge (South), Karachi (Mr. Muhammad Ashfaque Balouch), who found both of them guilty aid they were sentenced to imprisonment for life and to pay fine of Rs,20,000 or in default to suffer R.I. For 2 years. The appellants were also directed to pay compensation of Rs,5,000 each to the legal heirs of the deceased Muhammad Pervaiz under section 544-A, Cr.P.C. Failing which the same was to be recovered as arrear of land revenue. The appellants were also convicted for the offences under section 307/34, P.P.C. And sentenced to suffer R.I. For 7 years and to pay fine of Rs,5,000 each in case of default to suffer R.I. For one year. Both the substantive sentences were ordered to run concurrently and they were also given the benefit of section 382-B, Cr.P.C. Co- accused Akhter Ali was acquitted by the same judgment as there was no evidence against him. It is in these circumstances that the appellants have filed separate appeals under section 410, Cr.P.C.
2. Challenging their conviction and sentence which was awarded to them on 8th October, 1991 and I propose to dispose them of by a single judgment.
3. ' The allegations against the appellants as disclosed by complainant Raja Harnid Nawaz in his statement under section 154, Cr.P.C. Are that on 1-5-1988 at about 8-00 p.m. He came to his house which is situate at Usman Ghani Road, Mansoor Colony, Karachi and while he was sitting on the shop known as Saeed Video his friend Pervaiz also came there. Pervaiz took him to the Pan cabin on the same road to have Pan. After taking Pan witen they reached on the corner of the road a car of Chaudhry Saeed, Area Councillor came and stopped near them.
4. ' Four persons came out of the said car. Thereafter, Pervaiz told the complainant that he was going to talk to the plumber and he went towards Usman Ganj Road. After a short while a boy came to the complainant and informed him that quarrel had taken place with Pervaiz (deceased).
5. Complainant Raja Hamid Nawaz went there and saw that four persons who had come out of the car of Area Councilor were fighting with Pervaiz. He disclosed that appellant (Kaka) had Chhuri in his hand. The three other culprits were unknown to him but he could identify them as one of the culprits had Ice Depot in Manzoor Colony, Karachi. According to the complainant Kaka gave Chhuri blows to Pervaiz who fell down. The complainant went to save the deceased but he also sustained Chhuri injuries at the hands of Kaka on his arm and he fell down. His cries attracted many persons of the locality and they removed the complainant and Pervaiz to hospital. The culprits in the meantime ran away and the deceased also died due to injuries ' The F.I.R. Bearing No,144 of 1988 was lodged on 8-5-1988 at 22-30 hours while the incident took place at 20-00 hours. At the trial the prosecution examined six witnesses. P.W.1 Muhammad Yousuf is brother of the deceased. He was informed by Mohallah people that his brother deceased Pervaiz had sustained injuries and was taken to Jinnah Hospital. He then went to the hospital and found his brother lying dead in the mortuary. The police inspected the dead body in his presence and he produced the memo. Of inspection and inquest report (Exhs.9-A and 9-B). He also received the dead body of the deceased for burial (Exh.9-C). P.W.2 is an eye-witness and he produced the Mashirnama of Wardat (Exh.15) and arrest of the accused (Exh.16). P.W.3 Mushtaque Ahmed is also an eye-witness. P.W.4 P.C. Muhammad Siddique is the process-server. He produced the unexecuted warrants of P.Ws. Saifullah and Fazal Hussain. P.W.5 D.S.P. Choudhry Inayat Ali had submitted the challan and he also deposed that Inspector Rabbani who had investigated the matter had died. P.W.6 Anwar Hussain acted as Mashir of arrest of appellant Kaka and he produced Mashirnama Of blood-stained clothes (Exh.28) of the said appellant. P.W. P.C.
6. Muhammad Siddique is process-server. He could not serve summons on complainant Raja Hamid Nawaz. P.W.7 Dr. Jalil Qadir was Assistant Police Surgeon, Sindh Government Hospital Liaquatabad, Karachi. Post-mortem examination on the dead body of deceased Muhammad Pervaiz was conducted by him and he produced the post-mortem report (Exh.34). P.W.8 S.-I. Shah Muhammad had partly investigated the matter. He produced the Roznamcha entry (Exh.37) and supported the Mashirnama of dead body of deceased/inquest report (Exhs.9-A, B and C). He also produced statement of injured Raja Hamid Nawaz recorded under section 154, Cr.P.C. (Exh.13). He deposed that further investigation was conducted by Inspector Raja Ghulam Rabbani who is now dead.
7. P.W.9 Mirza Saleem Baig received case papers on 10-5-1988 and he partly conducted the investigation including arrest of the appellant Iftikhar on 12-5-1988. He produced Mashirnama of arrest (Exh.40) F.I.R. (Exh.41) report of the Chemical Examiner (Exh.42). P.W. Muhammad Arif was given up by the learned A.P.P. (vide statement Exh.43). On 29-9-1991 the learned A.P.P. Closed the prosecution side.
8. ' Appellant Imtiaz Hussain' alias Kaka in his statement recorded under section 342, Cr.P.C. Denied the prosecution version and claimed false implication. Appellant Iftikhar Ahmed also alleged false implication. On behalf of appellant Kaka D.Ws. Dur Muhammad and Mushtaque Ahmed were examined. Both the appellants examined themselves on oath (Exhs.52 and 56).
9. ' I heard Mr. Muhammad Ashraf Bhatti learned counsel for the appellant in Appeal No,131 of 1993 and Mr. Usman Ghani Rashid learned counsel for the appellant in Appeal No,121 of 1993 and perused the case-law cited by them. Mr. Agha Zafir learned counsel for the State as well as Mr. Shoukat Hussain Zubaidi learned counsel for the aggrieved person were heard at length and the record was also examined by me.
10. ' Mr. Muhammad Ashraf Bhatti, Advocate submitted that (a) the F.I.R. Has not been proved as the prosecution failed to examine complainant Raja Hamid Nawaz who had allegedly sustained injuries and was supposed to be an eye-witness; (b) the ocular testimony is furnished by interested witnesses and they have not been named in the FIR.; (c) the medical evidence is also inconsistent with the ocular testimony. The nature of injuries rules out the' possibility of the use of Chhuri; (d) there is no evidence to suggest common intention to commit murder of the deceased and the prosecution has failed to prove any motive; (e) recovery of crime weapon is also doubtful.
11. In support of his submission Mr. Muhammad Ashraf Bhatti cited Hussain Bakhsh v. Muhammad Amir and others 1983 SCMR 800, Allah Wasaya v. The State 1991 PCr.LJ 1587, Shoukat and 2 others v.
12. The State 1981 SCMR 444, Muhammad, Afzal v. The State PLD 1958 (W.P.) Lah. 662, Gul Muhammad alias Gullo and another v. The State 1974 PCr.LJ 400, Pervez Ahmed v. The State 1987 PCr.LJ 2391, Khalil v. The State PLD 1956 (W.P.) Lah. 840, Abdur Rashid v. The State 1975 PCr.LJ 565, Dost Muhammad and another v. The State PLD 1971 Pesh. 41, Haider and 3 others v. The State PLD 1971 Lah. 68, Syed Azeem Shah v. The State PLD 1987 Quetta 96, Muhammad Feroze v. Muhammad Arif and another 1976 SCMR 497, Muhammad Amin and 2 others v.. The State 1983 PCr.LJ 2388. Mr. Usman Ghani Rashid submitted that; (a) the prosecution has failed to produce any evidence to show that the appellants had decided to kill the deceased; (b) appellant Iftikhar Ahmed had no knowledge that the co-accused was having Chhuri and the alleged grappling indicate that there was a sudden fight; (c) the prosecution has failed to prove the charge against appellant Iftikhar beyond reasonable doubt. Therefore, he was entitled to this benefit; (d) compliance of section 103, Cr.P.C. Was not made and the Mashir of arrest and recovery are common; (e) there is no reliable evidence to connect appellant Iftikhar Ahmed with the alleged offence and evidence- of common intention is lacking in this case. Mr. Usman Ghani Rashid cited Muhammad Akbar and 2 others v.
13. The State PLD 1991 SC 923, Abdullah and 4 others v. The State PLD 1992 SC 259, Muhammad Iqbal v.
14. Muhammad Tahir and others PLD 1985 SC 361 and Bashir Ahmed and others v. The State PLD 1988 SC 86 in support of his submissions. Mr. Agha Zafir supported the impugned judgment. Mr. Shoukat Hussain Zubaidi, Advocate was not engaged by complainant Raja Hamid Nawaz who did not appear before the learned trial Court for a single date of hearing but in the diary it has been wrongly mentioned that Mr. Zubaidi appeared on behalf of the complainant. According to the learned counsel he appeared, "for the deceased". He supported the impugned judgment.
15. ' The unnatural death of deceased ,Muhammad Pervaiz is not at all in dispute. The post-mortem examination report (Exh.34) was produced by Dr. Jalil Kadir, Assistant Police Surgeon, Government Hospital, Liaquatabad, Karachi. He deposed that on 8-5-1988 at p-00 (sic) a.m. Deceased Muhammad Pervaiz was brought to J.P.M.C., Karachi by Muhammad Yousuf with history of assault.
16. On internal examination the Medical Officer opined as follows:-- Surface wounds and injuries: ' No,lIncised wound left thigh upper most region anteo meclialaspect about 1-1/2 x 1/2" structures deep, corresponding cut in clothes present. Injury was ante-mortem in nature with post-mortem interval approximately 3 to 4 hours.
17. Internal examination: ' Exploration of head, chest and abdomen done, found nothing significant.
18. Explanation of wound: ' On exploration of wound on thigh it is seen that there is sharp cut corresponding to external injury through skin, subcutanous tissues, muscles, femoral vain 1/3rd circumference cut and femoral artery 2/3 circumference cut, nerve completely cut."
19. ' Regarding cause of death he deposed as follows:-- "Cardio respiratory failure due to excess hemorrhage resulting from injury sustained on his person by same sharp-edged weapon."
20. ' Now the crucial question is whether the appellants committed the murder of deceased Pervaiz. On this point the prosecution case rests on the ' ocular testimony, medical evidence, recovery of blood-stained clothes of appellant Kaka and crime weapon as well as circumstantial evidence.
21. ' Before taking up each piece of evidence for discussion it would be relevant to observe that the F.I.R. Was lodged by complainant Raja Hamid Nawaz but he was untraceable as per statement of process-server P.C. Muhammad Siddique. Therefore, he could not be examined. From a plain reading of the first report it appears that he had witnessed the alleged incident.
22. ' The F.I.R. Is an important document of considerable value at the trial. It indicates what was the material available when the investigation commenced and what was the story narrated by the first informant at the earliest possible opportunity but it is not a substantive piece of evidence. It can be used only for the purpose of corroborating or contradicting the first informant. Therefore, the effect of failure of the prosecution to examine Raja Hamid Nawaz is that the contents of the F.I.R. Have not been proved according to law. In such a situation when P.W.2 Muhammad Afzal and P.W.3 Mushtaque being the eye-witnesses have not been named in the F.I.R. Which was lodged promptly by the complainant who was also an eye-witness, their statements are required to be evaluated on their own merits instead of keeping them altogether out of consideration.
23. ' P.W.2 Muhammad Afzal is uncle of deceased Pervaiz. He deposed that on 8-5-1988 it was 3rd of Ramazan and the time was about 8-15 p.m. He was sitting on the Thalia near the place of incident on Usman Ghani Road. P.W. Mushtaque was also sitting with him. At that time he heard cries that somebody was fighting with Pervaiz. These two witnesses went towards that place. In his statement he further deposed that he saw that appellant Iftikhar Butt had grappled with deceased Pervaiz but in the same breath he repeated that appellant Iftikhar Dar held the deceased from his backside and appellant Imtiaz Hussain Shah alias Kaka who was carrying a Chhuri gave Chhuri blows to deceased Muhammad Pervaiz in-between his stomach and leg. Complainant Raja Hamid Nawaz wanted to rescue the deceased but appellant Imtiaz Hussain alias Kaka also gave him dagger blows on the arm. This witness identified the two appellants on the spot but the third person who was giving directions to the two appellants to cause injuries to the deceased was not known to him by name. He could not identify that culprit in Court. One Akhtar was also heard saying that injuries should not be caused and they should be left alone. Thereafter, Akhtar went and brought a rickshaw there. P.W.2 as well as Akhtar and P.W.3 Mushtaque took injured Pervaiz in rickshaw to Jinnah Hospital where the doctor on duty informed them that the deceased had expired on the way.
24. ' In cross-examination he stated that the appellants had no enmity with the deceased. He admitted that the place of incident was a thickly populated area. There was also a hotel and furniture shop. Ice depot of Iftikhar Dar and shop of Akhtar were also situate there. The video shop was located at a distance of about 15 to 20 paces from the place of incident, but that 'was not examined by the police on 9-5-1988 although in reply to a question put by learned counsel for appellant Iftikhar he stated that S.A. Video was three ft. Away from the place of Wardat. He denied the suggestion that he deposed falsely as the deceased, was his nephew.
25. ' P.W.3 Mushtaque Ahmed in his statement deposed that at 8-15 p.m. On 8-5-1988 he was sitting on the Thalia near S.A. Video. Alongwith P.W. Muhammad Afzal when they heard cries nearby and they went towards that side.
26. ' They saw that appellant Iftikhar had caught hold of the deceased from his arms while Imtiaz Hussain Shah alias Kaka who was armed with Chhuri (knife) was giving blows to the deceased between stomach and thigh. P.W. Hamid Nawaz wanted to intervene but he was also injured by appellant Imtiaz Hussain Shah alias Kaka. He disclosed that accused Akhtar was standing nearby and he ordered the co-accused "they should not murder the deceased and leave him", but there was yet another unidentified person who was standing there and he ordered the appellants to finish the deceased. Since many people had gathered therefore, the appellants ran away. In cross- examination he stated that he and the complainant were employed in the K.E.S.C. And the deceased was also known to him since childhood as he used to live in his neighbourhood. He admitted the suggestion that at the time of incident there was no light at the place of incident. In re-examination he stated that street lights were on at that time.
27. This is the entire eye-witness account furnished by these two witnesses. On deeper examination it is evident that both the witnesses have given e exaggerated and improbable story. P.W.2 deposed that immediately after the incident he and P.W.3 as well as one Akhtar took injured in a rickshaw to Jinnah Hospital but this fact has not been disclosed by P.W.3. This is an important fact and could have been conveniently deposed by P.W. Mushtaque had he been present at the spot. Neither Akhtar nor even rickshaw driver have been examined. It is also doubtful that three persons along with injured could have taken the deceased in one rickshaw to hospital. Even if it is believed for a moment that they had actually taken the injured at least clothes of two of them must have been stained with blood but during investigation, no blood-stained clothes were recovered from their persons. Furthermore, according to Dr. Abdul Qadir (P.W.6) the deceased was brought to Jinnah Hospital at 9-00 p.m. By Muhammad Yousuf with history of assault. The inquest report was also prepared at the hospital by the police and the witnesses of the inquest report are Muhammad Yousuf and Abdul Wahid. Nowhere it has come on record that P.Ws.2 and 3 had brought the deceased at Jinnah Hospital or they were present either at the time of preparation of inquest report or post-mortem examination. On the contrary P.W.1 Muhammad Yousuf who is real brother of the deceased deposed that Mehmoodabad Police also came there at about 9-35 p.m. And inspected the dead body of the deceased on his potation and then Mashirnama and inquest report (Exhs.9-A and B) were prepared. After post-mortem examination he received dead body of the deceased for burial. Both P.Ws.2 and 3 were not strangers to P.W.1 Muhammad Yousuf and without any difficulty he could have supported their statements on material points but he has not said a single word which clearly belies the claim of these two witnesses that they had seen the actual occurrence, or had removed the deceased to hospital. I am convinced that only Raja Hamid Nawaz complainant who had sustained injury C was the natural eye-witness but he has also not mentioned the names of these two witnesses in the F.I.R'
28. ' So far the medical evidence is concerned there is no doubt that deceased died due to respiratory failure as the result of excessive haem. Orrhage due to injuries sustained by him. Late S.H.O.
29. Ghulam Rabbani who had prepared Mashirnama of the place of incident also noted that blood was lying on earth in large quantity. This Mashirnama was prepared in the presence of P.Ws.
30. Muhammad Afzal and Muhammad Yousuf and indicates that the deceased was neither immediately removed from the Wardat nor the two eye-witnesses took him to the hospital as claimed by them. On this aspect also the medical evidence 0contradicts the ocular testimony.
31. ' The last important piece of evidence is recovery of blood-stained clothes and crime weapon i,e, Chhuri. The incident took place on 8-5-1988 while appellant Kaka was arrested in the presence of same Mashirs namely Muhammad Yousuf and Muhammad Afzal on 9-5-1988 at 5-30 a.m. From Pir Bukhari Mazar where he has sleeping. This place was a few miles away from his house. The preparation of Mashirnama of arrest as alleged is doubtful. According to P.W.2 Muhammad Afzal it was written by Inspector Ghulam Rabbani but P.W.3 Mushtaque Ahmed in his cross-examination deposed that the Mashirnama was written by one P.C. Even otherwise the Mashirnama of arrest (Exh.16) of appellant Kaka is silent about recovery of blood-stained clothes at the time of arrest but P.W.5 Mashir Anwar Hussain has deposed as follows:-- "In the month of May, 1988 dated 9-5-1988 at about 4 p.m. I had come to Police Station Mehmoodabad with my work for renewal of National Identity Card which was misplaced. Police had already, arrested accused Kaka and he had blood trousers/Shalwar on his body. Police got that Shalwar removed from the body of accused Kaka and prepared such Mashirnama. I put my signature on the Mashirnama. I produced the . Mashirnama as (Exh.28)."
32. ' It is specifically mentioned in the Mashirnama of arrest (Exh.16) that in spite of search nothing was recovered from the person of the appellant. If that was so the police could have conveniently seized the blood-stained Shalwar instead of waiting of about 11 hours and then to seize that at 4-00 p.m. Is it believable that after arrest and search of the person of the appellant at the Mazar the police party did not see the blood on his Shalwar? This is quite ridiculous and least appealing to reason that after the commission of the alleged offence appellant Kaka went to his house to conceal the crime weapon and then with blood-stained clothes on his body he would have gone to Mazar to sleep there.
33. I have no doubt in my mind that at the time of incident lights were off at the place of incident and even if it is believed that the street lights were on it is highly doubtful that the culprits could have been identified by the eyewitnesses. I, therefore, find considerable merit in the submission of Mr. Muhammad Ashraf Bhatti when he vehemently urged that it was an unwitnessed incident and the whole story was fabricated later on by highly interested witnesses.
34. ' The recovery of crime weapon as per Mashirnama was made on 14-8-1988 i,e, after the lapse of about five days and it is not believable that the appellant who was in custody since 9-5-1988 would lead the police party and witnesses to his house to produce voluntarily the Chhuri which was not found sufficiently stained with human blood by the Chemical Examiner. This piece of evidence is hardly of any help to the prosecution. There is also considerable force in the submission of Mr. Muhammad Ashraf Bhatti that compliance of section 103, Cr.P.C. Was not made. I have noted that even no effort at all was made to associate any independent and respectable person to act as Mashir and no plausible explanation has been offered for non-compliance of this important provision of law.
35. ' The upshot of the above discussion is that after having examined the entire evidence brought on record my conclusion is that the prosecution has miserably failed to prove the charge against the appellants and the impugned judgment is not sustainable in law. These two appeals were allowed by me as prayed on 30-5-1996 by a short order and it was ordered that the appellants should be released forthwith if not required in any other case. The above are the reasons for the same.