On conclusion of the hearing of this appeal I had reserved the judgment on 26-7-1994 and then by a short order dated 11-8-1994 I allowed this appeal by setting aside the conviction and sentence of appellant Muhammad Tufail. I now proceed to record my reasons for the same.
2. The appellant, alongwith Faryad Ahmed and Muhammad Jahangir, was tried on a charge under section 302, P.P.C. By the Ist Additional Sessions Judge, Karachi (West) and on being found guilty, vide judgment dated 2nd August, 1992, was convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.30,000 (in default thereof three years' R.I.). Other accused namely Muhammad Jahangir and Faryad Ahmed were given benefit of doubt by the learned A.D.J. And hence they were acquitted under section 265-H, Cr. P.C.
3. The prosecution case highlighted in the impugned judgment, the paper book and the F.I.R.
Consists of two versions particularly about lodging of the F.I.R. These two versions can be summarised as under:
(a) On 1-1-1983 at about 3-30 p.m. Complainant Sawardeen and deceased Muhammad Siddique were sitting on a "Thalla" (platform) situated in New Saeedabad Naiabadi, Karachi when appellant and other two accused came there. Appellant Muhammad Tufail said to deceased Muhammad Siddique that he was speaking ill against his daughter and had thus defamed her. The deceased replied in negative but the accused started inflicting "Danda blows" at Muhammad Siddique and abused him. The complainant tried to rescue Muhammad Siddique but they started beating him too with wooden sticks. Thus the complainant was also injured. The deceased had received injuries on his head, nose, feet and other parts of his body. The injured reached police station to lodge a report. The police wrote a non cog report at 16-30 on 1-1-1983 being Report No.36 under section 323/502, P.P.C. In the station diary. After lodging this report, the complainant said that he wanted to go to hospital for medical treatment.
The said report was, later on incorporated as F.I.R. No.1/83 after receiving information from Dr. Hassan on 2-1-1983 at 10-20 hours that injured Muhammad Siddique had expired. It is thus evident from this version that only appellant Muhammad Tufail was specifically mentioned in the report but for the remaining two persons the complainant had used the words "other two accused".
(b) The second version of the complainant came into light when he was examined in the Court on 9-8-1984 wherein he stated that: "Accused Faryad was armed with Sarya, accused Tufail was armed with Danda and Jahangir was empty-handed. Accused Tufail spoke to the deceased Siddique that deceased was speaking ill about his daughter as such deceased defamed his daughter. The deceased did not reply but accused Faryad hit deceased with Sarya on the head of the deceased. Accused Jehhan it and "Tufail gave Lathi blows to the deceased. I intervened to save Siddique. I received injuries on the head. Who caused me injury I cannot say. All the three accused caused me injury. I became unconscious. I then went to the Police Station Baldia Town. I lodged F.I.R. There.
4. The difference between the two versions can be easily realised by every sensible person but notwithstanding the contradiction as underlined in the preceding para., the important question before this Court was as to how the complainant could lodge the said report if he was unconscious. It could be presumed that the complainant had gained consciousness and then went to the police station to lodge the report. But this presumption is fully shattered by the complainant himself in his cross-examination. Different pieces of evidence from his deposition can be referred in support of this reality which run as under: "(i) Police then sent me and injured Muhammad Siddique to Abbasi Shaheed Hospital------.
It means that accused Muhammad Siddique had also reached the police station before leaving for hospital or before his death.
"(ii) I had given the names of all accused in my report. Police had read over contents of the report to me but the report which I had made was not written by the police ...."
It shows that the complainant had added certain things in his deposition which were not mentioned in F.I.R.
"(iii) It is correct to suggest that defamation of the girl was not reported to the police before the incident."
It is noticeable that this motive was fully abandened during the proceedings as well as in the investigation.
(iv) It is incorrect to suggest that I had not mentioned in my police report that the accused Faryad had Sarya in his hand. I had mentioned to the police but it was not written by the police .... "
The use of Sarya was not proved in the case.
(v) I became unconscious when I received injuries. I gained consciousness in the hospital. I regained consciousness at about 5-30 or 6 p.m. In the hospital . . . . "
If report was lodged after 6 p.m., then time mentioned in the F.I.R. Was incorrect.
(vi) The Danda (stick) as brought by the father of accused Jahangir.
It means not recovery was effected from accused Jahangir.
If the facts mentioned in the above-quoted pieces of deposition of the complainant are treated to be true then the facts mentioned by the same complainant that he and the deceased reached P.S. First and lodged the report at 16-30 hours are totally falsified. The reason is obvious. The report could be lodged after 18-00 hours and not at 16-30 if the complainant had gained consciousness at 6-00 p.m.
Similarly recovery of Danda (stick) was made from father of accused Jahangir and not from the accused himself. It shows doubtful recovery or defective investigation.
The use of Sarya by accused Faryad appears to be afterthought or an improved statement.
Hence it is evident that the prosecution case as narrated in the non-cog report or in the cognizable report lodged after the death of deceased Muhammad Siddique was fully shattered by the complainant during his examination in the Court.
5. It is important to point out that the learned trial Court was also not unaware of these conflicting pieces of evidence and therefore it observed that: "As far accused Muhammad Jehangir and Faryad Ahmed are concerned their names do not appear in the F.I.R. And no identification parade was held in this case, besides that there are contradictions regarding their weapon in F.I.R. And deposition of complainant, hence doubt is created if they were the companions of co-accused Muhammad Tufail. "
On the strength of these observations, the learned trial Court acquitted two co-accused but did not give this benefit to the present appellant.
6. Thus a question arises on what piece of evidence the present appellant convicted and sentenced if the complainant's statement had been treated unbelievable in the cases of two co- accused persons.
The prosecution in support of its case had examined following witnesses besides the complainant.
(i) Fazal Ahmed (P.W.2) claimed to be eye-witness but the learned trial Court did not believe him and made the following observations about him: "Under the circumstances the version of P.W. Fazal Ahmed that he witnessed the incident cannot be accepted as correct. His evidence to the extent that he witnessed the incident, therefore, cannot be believed?
(ii) Allah Jawaya (P.W.3) stated in his deposition as under: "I did not see anybody giving them injuries."
(iii) Muhammad Suleman (P.W.4) is a formal witness to identify dead body of Muhammad Siddique.
(iv) Jabbar Hassan (P.W.5) is an A.S.-I. Who recorded non-cog report at 16-30 hours.
(v) Ghulam Muhammad (P.W.6) is a formal witness in whose presence blood was secured from the place of incident.
(vi) Ata Muhammad (P.W.7) is a formal witness who identified dead body of the accused.
(vii) Muhammad Riaz (P.W.8) is a formal witness who had visited the place of wardat after dead body was brought from the hospital.
(viii) Abdul Rehman (P.W.9) is a chance witness
(ix) Dr. Khalil Ansari (P.W.10) had carried post-mortem of the deceased on 2-1-1983 at 4-00 a.m.
(x) Basheer Ahmed Bhatti (P. W .11) is witness of arrest of accused/appellant Tufail.
(xi) Rao Nawaz (P.W.12) is I.O. Of the case after the matter was handed over to him for the purpose of investigation.
(xii) A.I Gohar (P.W.13) was the first I.O. Who had done initial investigation before handing over the case to P.W.12.
7. The summary of evidence of all these witnesses leaves no doubt for me that the only witness who could be relied upon to convict the present appellant was complainant Sawardin. But, admittedly the said witness was not relied upon regarding his statement about other two co- accused who were, thus, acquitted by the Court. Hence the important question before this Court is as to by he should be believed in the case of present appellant?
It may be necessary to point out that judgment of the learned trial Court for acquitting the two accused was found in to be based on the following grounds:
(i) Their names were not mentioned in the F.I.R.
(ii) Their identification parade was not held, and
(iii) There were contradictions in the F.I.R. And deposition of complainant regarding the weapon used in the incident.
I have no hesitation to hold that these grounds are neither sufficient to convict nor to acquit an accused. Nevertheless the name of an accused appears in an F.I.R. Or not, and whether identification parade in a case had been held or not but if there are convincing corroboratory pieces of evidence to establish the role of an accused with certainty for causing fatal injuries to any deceased in murder case, then conviction and sentence must be the fate of such accused.
8. There were several important factors for discussion to decide the fate of present appeal but, instead of burdening this judgment with all those points, I would like to discuss only two points which touch the roots of this appeal. These two points can be summarised as under:
(a) If it was only the appellant who had reached the place of incident then it cannot be believed that he could injure the complainant as well as the deceased solely. And if there were three accused, as stated by the complainant, then the most important question for the trial Court was to find out who had caused fatal injuries to the deceased? In this case it is astonishing that the doctor did not mention in his report as to which injury was fatal to cause death. Regarding this aspect I would like to reproduce some pieces of evidence from the deposition of the doctor (P.W.10) which run as follows: "(i) I have not stated in my opinion that all the injuries collectively and/or individually any of them were sufficient to cause death in ordinary course of nature.
(ii) It is correct that first I had replied that no injury individually was sufficient to cause death but when discussion was held with the Court the point registered with me and I replied that injuries Nos.2, 3 and 4 were individually sufficient to cause death.
(iii) It is correct that first I had given the probable time between injury and death as some 8 to 24 hours but later on, account of discussion by the Court I said that I cannot say the time between injury and death. After consulting the post-mortem report Exh.22 I still say that I am unable to give the time probable which elapsed between injury and death.
(iv) The correct position is that none of these injuries were sufficient individually to cause death in ordinary course of nature.
These pieces of evidence fully radiate that there was no certainty about the fatal injuries which caused death to the deceased.
It appears that the learned trial Court had also realised the consequences of this important factor and therefore it did its best to get few replies from the said doctor by putting Court questions. As a result of those questions, the doctor stated at one stage that injuries 2, 3 and 4 individually or collectively was/were dangerous. But, it is interesting to point out that the said doctor resiled from this statement in the last stage by saying that "the correct position is that none of these injuries were sufficient individually to cause death in ordinary course of nature.--- If it is presumed that injuries 2, 3 and 4 individually or collectively were dangerous and sufficient to cause death even then there is no evidence on record to put responsibility with certainty on the present appellant that it was he who had caused those injuries to the deceased. In my view even if it is certain that out of two accused one had caused fatal injuries to the deceased but if it is not certain as to who caused those injuries to the deceased then none of them would be convicted under the charge of murdering the deceased. Same is the position in the present appeal. The general impression given by the eye-witness is that all the three accused caused injuries. But who caused fatal injuries? The prosecution is silent on this part. Hence the present appellant is also entitled to benefit of doubt, and, therefore this appeal can be allowed on this score alone.
(b) The second point for allowance of this appeal relates to the motive to murder. It is an admitted position that although there is mention of motive yet there is absence of proof of motive. Motive can play a role of double-edged weapon but when the same is completely abandoned then it becomes necessary to scrutinize the credentials of the evidence of prosecution witnesses. In the present case there is not a single sentence in the deposition of any of the prosecution witnesses in support of the motive which was mentioned by the complainant at different stages. Hence I have no hesitation to hold that the prosecution had failed to prove its case beyond reasonable doubt against the appellant and therefore, conviction and sentence awarded by the learned trial Court to the appellant was not based on sound appreciation of evidence.
9. And these were the reasons for passing a short order as embodied in part. 1 of the judgment.