' MUHAMMAD ASLAM ARAIN, J.--- Appellant Muhammad Rafique was charged under section 302, P.P.C. For having committed murder of Mst. Zahida Bibi wife of complainant Shaukat Ali on 10-11- 1988 at about 5-00 p.m. In house bearing No,467, Sector 48-B, Korangi, Karachi. On conclusion of trial, learned Sessions Judge, Karachi-East, by judgment, dated 4-12-1991 convicted the appellant and awarded him death sentence and fine of Rs,50,000 or in default of payment of fine to suffer further R.I. For 6 months more. It is further directed that half of the fine i,e, Rs,25,000, if recovered, to be paid to the heirs of deceased. We have before us appeal filed by the convict Muhammad Rafique and confirmation of sentence referred by the trial Court. We propose to decide the same by this judgment.
2. Facts in brief are that on 10-11-1988 at 17-35 hours complainant Shaukat Ali appeared at Police Statiqn Korangi, Karachi and lodged F.I.R. No,1046 of 1988, in which he stated that he was residing with his wife Zahida Bibi at Korangi since about one year. His maternal-aunt Mst. Safidan Bibi had a daughter by name Shahnaz, whose hand for marriage was being demanded by appellant for his brother Muhammad Ali. Mst. Safidan refused to marry her daughter Mst. Shahnaz to Muhammad Ali but married Shahnaz to one Tariq. Since complainant and his family members had participated in the said marriage, appellant was unhappy due to that. On 9-11-1988 P.W. Shakir Hussain, elder brother of complainant, had gone to see appellant at Coast Guard Headquarter, Korangi. During their meeting appellant is stated to have shown his displeasure over marriage of Shahnaz with Tariq and had also expressed, that since complainant party was in collaboration with the family of Safidan Bibi, they would soon know the result. It is further in the F.I.R. That on 10-11-1988, when complainant returned from his duty at 5-00 p.m. He saw his brother Shakir Hussain standing at the door of his house carrying complainant's son, aged about one year. Shakir Hussain informed complainant that his wife Mst. Zahida had been murdered. Complainant entered the house and saw that the neck of Zahida was cut off and a broken Chhuri was lying by her side. Complainant showed suspicion in appellant due to the reasons shown above. Appellant was arrested on 10-11- 1988 and after usual investigation, challan was submitted in Court where charge under section 302 of P.P.C. Exh.4 was framed against appellant on 3-5-1989 to which he pleaded not guilty and claimed to be tried.
3. Prosecution examined P.W.1 Malik Javed who had acted as a Mashir to Exh.7, memo. Of place of incident prepared at the pointation of appellant. This witness was declared hostile as he did not support the prosecution version although he admitted that memo. Of place of incident Exh.7 bore his signature. P.W.2 Shakir Hussain Exh.8, brother of the complainant who was the first person to reach the Wardat. He stated that he was present at the place of incident as he lived with his brother complainant Shaukat Ali. At 5-00 p.m. On the day of incident, when he reached near the house he heard voice of somebOdy weeping inside the house and since the door was bolted from inside he forcibly opened the door, being followed by one Mushtaq, and saw appellant giving Chhuri blows to Mst. Zahida Bibi. He further stated that he tried to catch hold of the accused, who escaped through another door. Some other persons whose name were subsequently known as Akram and Molazim, also chased the accused but with no success. This witness also acted as Masi it of memo. Of Wardat an inspection of dead body Exh.9 but denied his signature thereon. He also acted as a -witness to the inquest report Exh.10 and admitted his signature P.W.3 Sarfraz was A.S.-I.
Police Korangi Police Station where Shaukat Ali lodged F.I.R. Exh.12. Along with complainant he visited the Wardat and saw dead body of Mst. Zahida Bibi. He recovered blood-stained Chhuri and a packet of cigarettes from the place of incident memo. Exhs.9 and 10 were prepared by him, whereafter he handed over case papers to S.I.P. Rehmat Baig. P.W.4 Shaukat Ali Exh.13, is the complainant in the case, who lodged F.I.R. And stated that on 10-11-1988 at 5-00 p.m. When he returned from his duty, he saw his brother Shakir Hussain with the small child and three other persons present at the house, namely, Muhammad Mushtaq, Muhammad Akram and Molazim Hussain. He also stated that his brother Shakir Hussain informed him that appellant had committed the murder of Zahida Bibi by giving Chhuri blows. He then went inside the house, verified the facts and lodged F.I.R. Exh.14. On his potation police prepared memo. Of Wardat Exh.7, which he signed as a Mashir. He further stated that tie appellant was arrested from Coast Guard Office under a Mashirnama, but denied his signature on it, although he had signed as Mashir. Complainant also stated that Mst. Safidan Bibi was his maternal-aunt and she had refused to marry her daughter to appellant due to which the appellant harboured grudge and that was the motive for committing murder of Mst. Shahnaz.
4. Prosecution then examined P.W.5 Mushtaq Hussain Exh.14, who was employed as a guard in U.B.L.
Gizri Branch. He stated that he wanted to purchase a house in Korangi area and had for that purpose gone to see a house in the vicinity of the place of Wardat. At about 4-45 p.m. While he was passing near the Coast Guard in Korangi he saw a man giving Chhuri blows to a female. He further stated that 2/3 persons present there had chased the culprit who entered in the Coast Guard premises. In the Court he identified appellant to be the person who had given blows to the deceased. P.W.6 Molazim Hussain Exh.15 was a mason and while returning from his job, he saw appellant running away from nearby Coast Guard being followed by few persons. He also stated that Shakir and Mushtaq Ali had informed him that the man running away had murdered Mst.
Zahida Bibi. He also stated that he went with other witnesses to the Wardat where he saw dead body of a woman lying in a pool of blood and small child by her side. According to this witness complainant Shaukat Ali arrived after 15/20 minutes of their arrival at the scene of offence and his brother Shakir Hussain narrated the facts to him. P.W.7, Dr. Amanullah Exh.16 was M.L.O. At J.P.M.C.
On 10-11-1988. When dead body of Mst. Zahida Bibi was received by him for post-mortem examination and report. The dead body had an incised wound 3" x 2" which looked like having been caused by multiple stabs. He produced his post-mortem examination report Exh.17. P.W.8 Anisur Rehman Khan Exh.18 was a passerby where some persons, who had gathered, informed him about the murder of a woman. He also stated that he had seen the Wardat for which memo. Exh.9 was prepared by police and, he acted as Mashir P.W.9, Rehmat Baig Exh.20 was the S.I.P. At Korangi Police Station and had received the copy of F.I.R. Through Constable Ghalib Hussain. He visited the Wardat and prepared memo. Exh.7 and sent dead body for post-mortem examination. On the same day he had arrested the appellant under Mashirnama Exh.22, in presence of Mashirs Shaukat Ali and Malik Javed.
5. Statement of appellant under section 342 of Cr.P.C. Exh.5 was recorded in which he denied the allegation against him. He examined defence witnesses Adalat Hussain Exh.27, and Mukhtar Ahmed Exh.28. Through defence witness Mukhtar Ahmed, certified copy of any entry of Roznamcha of Police Station Jatli, District Rawalpindi was produced which was recorded by the father of the deceased Mst. Zahida Bibi in which it was stated that Mst. Zahida Bibi was murdered by Shaukat Ali (complainant of this case) and Shakir P.W.1. On assessment of evidence the learned trial Court convicted the appellant and passed sentence as stated above.
6. We have heard the learned counsel for the appellant as well as the State. The contentions of Mr. Azizullah Shaikh. Learned counsel for the appellant, are that the incident was in fact an witnessed one as is clear from the F.I.R. Itself which is lodged by Shaukat Ali, husband of the deceased; that the witnesses Mushtaque Hussain and Molazim Hussain were not the eye-witnesses and their statements under section 161, Cr.P.C. Were not recorded during investigation; that the time of incident shown by so-called eye-witnesses does not get support from the medical evidence; and that the trial Court has brushed aside defence witness without cogent reasons. In support of such contentions of the learned Advocate, he has taken us through the evidence and has contended that the trial Court erroneously treated evidence of complainant Shaukat Ali, P.W. Shakir Hussain, P.W. Mushtaq Hussain and P.W. Mulazim Hussain to be the ocular testimony although none of these witnesses had witnessed and had seen the occurrence.
' Mr. A.A. Mohammadally, learned Additional Advocate-General appearing for the State has not supported the conviction and has fairly conceded that the case against the appellant was not proved and that the appellant is entitled to acquittal.
7. The perusal of the F.I.R. Shows that the complainant Shaukat Ali and so also his brother Shakir Hussain had gone to their duty at 7-15 a.m. At 5-00 p.m. When the complainant returned back to his house, he saw his brother Shakir Hussain standing at the door carrying complainant's son aged 1 year, who told the complainant that Mst. Zahida Bibi had been murdered. It was not stated by complainant that his brother Shakir Hussain had also informed him that Zahida Bibi was murdered by appellant or that any one was seen having committed the murder. It is further in the F.I.R. That on receiving information from his brother, the complainant went inside the house where he saw Zahida Bibi lying in a pool of blood with her neck cut off. More suspicion was shown in F.I.R. By the complainant that appellant who was serving in Coast Guard had murdered Mst. Zahida Bibi, on 10- 11-1988 at some time during the day. It is also not stated in the F.I.R. That P.W. Shakir Hussain had seen any other witnesses present at the place of occurrence. P.Ws. Mushtaq and Mulazim Hussain were neither named in the F.I.R. To have seen the incident, nor their statements under section 161 of Cr.P.C. Were recorded during investigation. It was only during trial that on 6-12-1989 i,e, after about one year of the incident, an application under section 540 of Cr.P.C. Was moved by A.P.P.
Requesting to call Mushtaq Hussain, Muhammad Akram and Mulazim Hussain as prosecution witness. A Learned trial Court allowed the application on 21-1-1990, where after Mulazim Hussain and Mushtaque Hussain were examined on 21-8-1990 and 14-2-1990. We have seen the original challan submitted against the appellant and the names of these witnesses are not mentioned therein. These witnesses could not have been introduced at a late stage, nor their evidence could be treated as ocular testimony. The two Police Officers, who conducted investigation and examined before the trial Court were Sarfraz Khan, A.S.-I. And Rehmat Baig, S.I.P. Admittedly, these Police Officers had not recorded the statements of Mushtaque Hussain and Mulazim Hussain under section 161 of Cr.P.C. In Ismail and 3 others v. The State 1983 PCr.LJ 823 a learned Single Judge of this Court ruled out of consideration the statements of witnesses recorded after 8 days from incident, as there was no explanation for such delay. In the instant case the statements of Mushtaque Hussain and Mulazim were not recorded at all, nor they were included in the list of witnesses in the challan. There was noncompliance of the provisions of section 265(c) of Cr.P.C. Which provides that in all cases instituted upon police report, copies of First Information Report, Police Report, statements of all witnesses recorded under sections 161 and 164, the inspection note recorded by the Investigating Officer in his first visit to the place of occurrence and the note recorded by him on recoveries made, shall be supplied free of cost to the accused not later than 7 days before the commencement of the trial. Two witnesses named above were summoned and examined after about one year of occurrence on an application by the A.P.P. Without supplying copies of their 161, Cr.P.C. Statements to the defence. This has caused serious prejudice to the accused. We, therefore, give no credence to the evidence of P.W. Mushtaq and Mulazim Hussain.
8. The perusal of the F.I.R. Shows that time of incident is not mentioned and the space provided for said purpose is left blank. The F.I.R. Further shows that the complainant had himself mentioned that during sometime on 10-11-1988, Mst. Zahida Bibi was murdered. The post-mortem report Exh.17 shows that the post-mortem examination was started at 9-00 p.m. And completed at 10-00 p.m.
The time between death and post-mortem examination is shown 8-12 hours. The incident, therefore, must have taken place at some time during the day and in any case before 5-00 p.m. As the evidence of Medical Officer contradicts the time of occurrence given by complainant and his brother Shakir Hussain.
9. We would also like to observe that the trial Court has wrongly taken that piece of evidence showing P.W. Shakir Hussain and Mushtaq having chased appellant and witnesses by Mulazim Hussain as circumstantial evidence. It shall suffice to say that the complainant never stated in the F.I.R. That his brother P.W. Shakir Hussain had also informed him that he or any other witnesses had chased appellant who entered the office of the Coast Guard. Since we have disbelieved the prosecution witnesses Mushtaque and Mulazim Hussain, the introduction of story of chasing the appellant is subsequent affair and does not form a piece of "circumstantial evidence".
10. The motive suggested by the prosecution is that the appellant wanted the hand of one Shahnaz daughter of Safidan Bibi for marriage with his brother Muhammad Ali and since the said Shahnaz was married to one Tariq and since the family of -complainant and his brother had participated in that marriage, appellant harboured a grudge and committed murder of complainant's wife. The motive suggested is far-fetched and is not trustworthy. There is no evidence of motive except that of complainants or his brother who are partisan witnesses and have not been corroborated by any independent evidence. We, therefore, find that the evidence on the point of motive was not only scanty but uncorroborated and, therefore, of no avail to prosecution.
11. While dilating upon this aspect of the case we cannot desist from taking note of the fact that the father of the deceased Mst. Zahida Bibi had reported at Police Station Jatli, District Rawalpindi that his daughter was murdered by Shaukat Ali and Shakir Hussain. Since the F.I.R. Of murder was already registered at Karachi no action on the report of father of Zahida Bibi seems to have been taken.
12. The evidence of defence witness Adalat Hussain who was a Chairman of Union Council of the area to which the parties belonged is to the effect that Sher Zaman, father of deceased had spoken to him before the incident that Shaukat and Shakir used to maltreat his daughter Zahida Bibi. Thus, it cannot be ruled out of consideration that the complainant and his brother Shakir may have themselves murdered Mst. Zahida Bibi and implicated present appellant on the basis of frivolous motive.
13. The perusal of the record further shows that for the Mashirnama of arrest of appellant, place of incident, inquest report etc. Either complainant Shaukat or his brother Shakir Hussain are associated as Mashirs although the place of incident is a thickly populated area and except Malik Javed and Anisur Rehman no one else is called to act as a Mashir. Malik Javed was declared hostile and Anisur Rehman was a chance witness. Even these witnesses, in our view, were shown at the instance of complainant or his brother Zakir Hussain.
14. The upshot of the above discussion is that the ocular testimony is discrepant, incoherent and not worthy of credit. There is no circumstantial evidence in the case and the motive suggested is weak. The evidence on a capital charge of murder has to be free of taint, independent and worthy of credit which in this case was not available. The conviction in these circumstances cannot be sustained.
15. For the foregoing reasons we hold that the case against the appellant was not proved beyond reasonable doubt. We, therefore, accept this appeal, set aside the conviction and sentence and direct acquittal of appellant forthwith, if not required in any other case. The confirmation of sentence is also declined. These are the reasons for the short order, dated 28-10-1992.