' JUSTICE RANA BHAGWAN DAS (CHAIRMAN).--- This judgment shall dispose of the aforesaid two appeals arising out of a common judgment dated 11-11-1997 passed by Special Judge for Anti- Terrorism, Hyderabad and Mirpurkhas Division, Hyderabad convicting the appellants under sections 302, 392 and 397, P.P.C.
2. Appellant Riaz has been convicted under section 302, P.P.C. For committing the murder of deceased Manzoor Ali and sentenced to death in addition to payment of a fine of Rs,3,00,000 or in default to undergo R.I. For five years. Each of the appellants is also convicted under section 392 read with section 379, P.P.C. And sentenced to imprisonment for fourteen years and to pay a fine of Rs,1,00,000 or in default to suffer R.I. For three years.
3. Unfortunate incident leading to the murder of deceased Manzoor Ali brother of first informant Muhammad Ibrahim and robbery of motorcycle from him at the hands of appellants took place on 3-9-1997 at about 7-00 p.m. On the link road leading to village Dilbar Khan Mahar from Mirpurkhas Khipro Road. Occurrence was witnessed by P.W. Muhammad Soomar a close relative of the deceased who claimed his arrival at the scene of incident by bus from village Phulladyoon where he was employed as a mechanic at a private garage. After alighting from the bus at the link road he had covered a distance of about one kilometre when he noticed three persons robbing motorcycle from the deceased. On latter's resistance he noted one of the assailants namely Riaz firing a pistol shot at the deceased. He also heard the alarm of second fire whereafter all assailants took away the motorcycle of the deceased towards Mirpurkhas Road whereas the deceased fell down on the road in a pool of blood with a wound of entrance above his right nipple passing through left side neck. Amongst the assailants, the witness found two others duly armed with a hatchet and a Lathi respectively. Soon after P.W. Muhammad Haroon serving as a clerk in the Office of Revenue Officer, WAPDA at Mirpurkhas arrived on a scooter who was informed about the occurrence. The latter proceeded to the village of first informant Muhammad Ibrahim and narrated the episode to him at his Otak at about 7-20 p.m. Report of the incident was lodged by Muhammad Ibrahim at Police Station Dilbar Khan Mahar the same day at 8-00 p.m. Which was recorded by S.H.O. Bhoro Mal. After the inspection of the place of incident and recovery of blood-stained earth as well as an empty shell by the Investigating Officer dead body was removed to Civil Hospital, Mirpurkhas where autopsy was performed by Dr. Muhammad Zafar at 9-45 p.m. On internal examination this Medical Officer found the following injuries:
(1) A wound of entrance 0.5 cm oval in shape with abraded ring margins inverted situated at about 5 cm above and medial to right nipple alongwith a wound of exit 1 cm rounded in shape margins everted situated lower third of left side neck.
(2) Three small rounded marks of fresh burns situated at right knee joint anteriorly.
4. On external as well as internal examination of the dead body, Medical Officer opined that the deceased died due to shock, haemorrhage and damage to the vital organs as a result of injury No,1 caused by a fire-arm. According to iiim, probable time between injuries and death was about 1/2 hour while the time between death and post-mortem within six hours. Witnesses to the incident were examined. The next day of incident at their Otak in the village. On the same .Day at about 3- 00 p.m. Appellaht Eidal was arrested from Otak of Haji Ghulam Rasool who was taken to police station. On interrogation he volunteered to produce a hatchet and led the Investigating Officer, Mashirs Nizamuddin and Nazar Muhammad to bushes and produced the same which, however, is of no consequence as neither hatchet was used in the commission of the crime nor was it stained with blood. On 5-9-1997 Investigating Officer arrested appellant Riaz and Ashrafuddin from village Chhandan Mori and prepared a memo. On 6-9-1997 on interrogation appellant Riaz volunteded to produce the pistol used in the commission of the crime when Mashirs Nazar Muhammad and Nizamuddin were called to police station to act as Mashirs. It is said that this appellant pointed out a place outside the hedge of his house and produced the pistol after digging the ground. The pistol was wrapped in a plastic cover and on being unloaded it was found to contain four live bullets in its magazine. The pistol was sealed and a memo. Was prepared in presence of Mashirs. As this.
Appellant had no licence for the weapon a case under the Arms Ordinance was also registered against him. On 7-9-1997 on interrogation appellant Ashrafuddin volunteered to produce the motorcycle, a Lathi and blood-stained clothes. Likewise Mashirs Nasrullah and Muhammad Malook Rajar were called at police station to act as Mashirs in whose presence this appellant produced a motorcycle and Lathi from sugarcane cultivation which were secured through a memo. He then led police officer and above Mashirs and produced blood-stained clothes, wrapped in a plastic bag from outside the hedge of his house which were also secured. The clothes were duly sealed at the spot. On 8-9-1997 identification parade in respect of the appellants was arranged under the supervision of Joint Civil Judge and F.C.M., Mirpurkhas through P.Ws. Muhammad Soomar and Muhammad Haroon whose statements were also recorded under section 164, Cr.P.C. On the same day appellants recorded their judicial confessions before the Magistrate .30 bore pistol alongwith four live cartridges as well as empty shell were sent to the Fire-arm Expert on 20-9-1997 who in his report certified that one .30 bore crime-empty marked as 'C' was fired from the abovementioned .30 bore pistol which was semi-automatic. Likewise bloodstained clothes and blood-stained earth were referred to the Chemical Expert on the same day i,e, 20-9-1997 who in his report certified that these articles were stained with human blood.
5. At the trial prosecution examined first informant Muhammad Ibrahim P.W.1, Muhammad Soomar P.W.2, Muhammad Haroon P.W.3, Dr. Muhammad Zafar P.W.4, Tapedar Waryam P.W.5, Mashir Ali Asghar P.W.6, Mashir Muhammad Suleman P.W.7, Mashir Ghulam Rasool P.W.8, Mashir Muhammad Riaz P.W.9, Mashir Nizamuddin P.W. 10, Nasrullah (motorcycle owner) P.W.11, Mashir Altaf Hussain P.W.12, Bhoro Mal P.W.13 and Farhat Mehtab, Joint Civil Judge and F.C.M., Mirpurkhas P.W.I4.
6. In their respective statements, appellants denied the allegations against them and alleged enmity with the witnesses. They disputed the production of incriminating weapons as well as the motorcycle and said that these were foisted on 'them. They admitted their production before the Joint Civil Judge and I.C.M. But denied that they were picked up in the identification parade or that they made judicial confessions. Each of the appellants/alleged maltreatment and torture at the hands of police. With regard to their judicial confessions they explained that something was recorded by a clerk of the Court on which their signatures were obtained. As regards the identification parade they unanimously stated that they were shown to the witnesses while in police custody before the parade. Appellant Riaz explained that his brother Sultan Ahmed had purchased lands adjacent to his house in Deh 127 from Sultan Ahmed and Muhammad Usman Lashari vide an agreement of sale (copy produced on record). As Muhammad sultan refused to transfer the lands in the name of his brother on account of such dispute he had been wrongly implicated. Likewise appellants Eidal and Ashrafuddin claiming. Relationship and being friendly with appeljant Riaz made a grievance of 'their false implication due to animosity between appellant Riaz and complainant party. No evidence in defence was, however, adduced.
7. On assessm ent of the evidence on record and consideration of the arguments advanced by the parties, learned Special Court found the appellants guilty of the charge and convicted and sentenced them as alone hence this appeal.
8. Points for determination in this appeal are:
(1) Whether appellant Riaz was rightly convicted for the commission of murder of deceased Manzoor Ali?
(2) Whether the appellants committed robbery of a motorcycle from deceased Manzoor Ali and at the time of committing robbery with a deadly weapon on his resistance attempted to cause his death?
9. We have heard learned counsel for the parties and with their assistance gone through the relevant evidence on record. Prosecution case primarily rests on the ocular evidence of P.W.
Muhammad Soomar, supportive evidence of P.W. Muhammad Haroon and Muhammad Ibrahim coupled with evidence of identification of appellants, recovery of .30 bore pistol at the instance of appellant Riaz, recovery of hatchet from appellant Eidal and recovery of robbed motorcycle at the instance of Asharfuddin and lastly retracted judicial confessions made by the appellants.
10. Scrutinizing the evidence of P.W. Muhammad Soomar who is admittedly closely related to the deceased but wrongly and dishonestly disputed by Muhammad Ibrahitn we find that he claims to establish his presence at the scene of offence on arrival from village Phulladyoon by bus. No doubt, he claims to have seen the assailants riding on motorcycle attempting to rob motorcycle from the deceased. He admits that he witnessed the occurrence of robbery of motor-cycle from a distance of 80--90 feet. With a view to further establish his presence, he explained that he left village Phulladyoon by bus starting at 5-45 p.m. And after stoppage at about 6 to 7 paces on way arrival at the link road at about 7-00 p.m. With regard to the identity of the assailants he claims that he had seen them clearly and, therefore, he was able to identify them but neither in his statement Under section 161, Cr.P.C. Recorded on the next day nor in his statement under section 164, Cr.P.C.
Recorded after five days he mentioned about the imminent features and description of the assailants. On being questioned as to what were the working hours in the garage where he was employed for about two months prior to the incident he was unable to account for the same. On his own showing the sun was about to set at the time of robbery and though present at the place of incident on arrival of police party his statement was not recorded on the first day and actdally recorded on the next day at his village. He admitted that he had not given the description of features, ages or stature of the appellants in his police statement as.Well as statement before the Magistrate. With regard to the arrival of P.W. Muhammad Haroon the witness stated that the latter arrived on a motorcycle to whom he narrated the whole story and while he himself remained at the site latter went to inform the relatives ()I' the deceased.
11 . On his part presence of Muhammad Haroon has been sought to be explained by saying that he returned from Mirpurkhas on his scooter and had covered about one kilometre distance when he came across Muhammad Soomar and found the dead body of the deceased. On coming to know about the incident from Muhammad Soomar he left for the village of the deceased and narrated the whole episode to Muhammad Ibrahim who accompanied by Mehar Ali and others reached the place of incident. This witness was employed in WAPDA at Mirpurkhas where his working hours were from 7-30 a.m. To 2-30 p.m. But it is not spelt out from his evidence as to how he reached the place of incident at about 7-05 p.m. In addition to his evidence with reference to the story narrated by Muhammad Soomar this witness claimed that he had seen three persons riding on a motorcycle from the opposite direction and that while crossing he had seen them very clearly when their motorcycle turned towards Mirpurkhas. Apart from the circumstance that the presence of both the witnesses at the place of occurrence is far from being natural and probable, the fact of the matter remains that on arrival of first informant Muhammad Ibrahim at the place of incident Muhammad Soomar did not narrate the incident to him. This attitude on the part of so-called eye-witness is quite unnatural, improbable and opposed to normal human behaviour. Assuming that Muhammad Haroon has described the incident to the first informant, it would have been usual and natural course of conduct on the part of Muhammad Soomar to relate the incident to the brother of deceased. Absence of such narration by itself is sufficient to create reasonable doubt about the presence of the witness at the time of occurrence and renders it difficult to accept his testimony on its face value. Again non-examination of both the material witnesses claiming to have seen the assailants very clearly by the Investigating Officer on his inspection to site is a factor relevant to determine the probability of the witnesses being present at the material time of incident. The fact that the Investigating Officer went to the village of both these witnesses which is the village of the deceased and recorded, the statements of both these star witnesses on the next day speaks for itself. With regard to Muhammad I laroon as well, it may he observed that he did not give the details of features, ages and stature of the appellants seen by him in his statement before the police or before the Magistrate. Both the witnesses had an occasion of momentary glimpses of the assailants at a time after sunset which on the day of incident set at 6-44 p.m. As per the ephemeris relied upon by the defence counsel and not controverted. In the circumstances, it is difficult to rely upon their interested and quite improbable evidence with regard to the incident as well as the identity of the appellants which in any event is not free from a reasonable doubt.
12. There is another aspect of the matter, namely hostile relations between ;lie parties on account of dispute over the agreement to sell lands by Muhammad Sultan son of Muhammad Usman is favour of Sultan Ahmed real brother of appellant Riaz. This fact was highlighted in the cross- examination of first informant Muhammad Ibrahim who admitted that Muhammad Sultan is the maternal uncle of the deceased but he conveniently avoided to admit whether there was an agreement of sale in respect of lands by said Muhammad sultan in favour of Sultan Ahmed brother of appellant Riaz.
13. As regards identification parade held on 8-9-1997 through P.Ws. Muhammad Soomar and Muhammad Haroon under the supervision of P.W. Farhat. Mehtab, Joint Civil Judge and F.C.M., Mirpurkhas suffice to say the appellants were in police custody at least for more than three days and on Muhammad Ibrahim's own admission police had informed the witnesses about the arrest of the accused on the next day of lodging the F.I.R. It may also be observed that a joint identification parade was held' in respect of the appellants by mixing up with 14-15 dummies which ratio is neither sufficient nor adequate according. To the settled principle by superior Courts. A reference in this connection may be made to the case reported as Lal Pasand v. State PLD 1981 SC 142 in which ratio of 10 other undertrial prisoners to one accused was approved. This rule was furthermore prescribed by the West Pakistan High Court in line with the ratio prescribed by the Government of the United Provinces in its Government Orders for police. In any event in view 01 explanation furnished by the appellants in their respective statements under section 342, Cr.P.C, possibility of the appellants being shown to the witnesses before the parade cannot be completely ruled out. In our view this piece of evidence does not improve the prosecution case which is essentially founded on evidence of chance and interested witnesses.
14. There is another strong factor in the evidence of the witnesses sufficient to pursuade us not to rely upon their statements implicitly for the simple reason that there 'is a glaring contradiction in the ocular as well as medical evidence. As would be found from the post-mortem report produced earlier in the narrative part of this judgment, Medical Officer had noted a wound of entrance oval in shape extending to, lower third of left side neck of the deceased. According to the sole star witness namely P.W. Muhammad Soomar the accused fired at the deceased from a distance of about 4-5 feet and when the shot was fired at the deceased he was still sitting on the motorcycle. It would thus be observed that the deceased received fatal pistol shot injury on his nipple extending towards lower third neck not from the straight opposite direction but from descending position while he himself was seated on the motorcycle. In case it be so shape of the injury would be oblique and not oval in shape. Dr. Muhammad Zafar on being suggested during his Cross- examination accepted the suggestion that from the track of injury No,1 fire which caused this injury was from the lower level towards the upper level. He also admitted the suggestion that when fire- arm is shot obliquely the entrance wound would be oval in shape. It may be observed that this inconsistency amounting to major contradiction is not capable of being reconciled which again creates a reasonable suspicion about the presence of this witness. Besides this injury could not be possibly caused from a distance of 4-5 feel by a person in standing position to a person riding on a motorcycle.
15. There is a further anomaly and confusion with regard to the absence of rigor mortis on the dead body. According to Medical Jurisprudence by Modi rigor mortis starts within 1 to 2 hours of the death. According to Dr. Muhammad Zafar however it starts from 3 to 6 hours and within 6 hours timing of death and post-mortem rigor mortis would be absent. Admittedly post-mortem examination was conducted at 9-45 p.m. Whereas according to the prosecution incident occurred at about 7-00 p.m. In case we accept both the timings as correct and prima facie there is no reason to doubt these timings in all probability rigor mortis ought to be present on the dead body which according to the Medical Officer was absent. Faced with this position the possibility of occurrence of death having taken place earlier in point of time and the whole incident being unwitnessed cannot be completely ruled out in these c rcupistances
16. Adverting to the recoveries, recovery of a pistol and four live bullets is attributed to appellant Riaz. As per Fire-Arms Expert, empty recovered from the Wardat appeared to have been fired from the pistol sent to the Expert. Unfortunately, no such question was put to the appellant in his statement under section 342, Cr.P.C., with the consequence that this piece of evidence is rendered inconsequential and cannot be used against this appellant. Again the recovery of blood-stained clothes at the instance of appellant Ashrafuddin on which human blood was detected by the Chemical Examiner has no nexus with the complicity of this appellant in the commission of the crime as in the event of injury caused by a fire-arm blood stains on the clothes of the appellant have no relation to the incident. Similarly, unfortunately for the prosecution no question as to the presence of human blood on such clothes was put to the appellant in his statement which renders this circumstantial evidence of no value. Obviously hatchet was not used in the commission of the crimeby appellant Eidal therefore the recovery if at all any, has no relevance to the determination of guilt of this appellant..
17. The matter does not end here while the empty as well as blood-stained earth were recovered on the day of incident i,e, 3-9-1997 pistol allegedly recovered at the instance of appellant Riaz on 6-9- 1997 and blood-stained clothes allegedly produced by appellant Ashrafuddin the same day these articles were received by the Fire-arm Expert as well as Chemical Examiner only on 20-9-1997 i,e, after a delay of more than two weeks. This delay in transmitting the crime weapons to the Experts is fatal to the acceptance of such evidence which surprisingly was not put to the appellant in their examination under section 342, Cr.P.C.
18. Lastly, adverting 'to the so-called confessions recorded by the appellants, in the first instance these are exculpatory in nature and do not implicate them in any manner; secondly, these were recorded by a clerk of the Civil Judge in Sindhi without the certificate of the Magistrate that she had dictated the same to the clerk; thirdly, certificate of satisfaction is not recorded on the confessional statements but on a sheet separately typed and attached to each of the confession and lastly, sequence of recording the confession is completely wrong and far from propriety. Perusal'of the confessional statement tends to show that confessional statement of each of the appellants is recorded earlier before the questions put to the appellant tending to satisfy the Magistrate that such statement was true, voluntary and free from influence, coercion and inducemept. The procedure adopted by the Magistrate is anomalous and ridiculous on the face of it which renders the confessional statements unworthy of any credit. Although the learned Magistrate in her evidence claimed that she could read and write Sindhi but there is no indication in the record of the confessional statements that her clerk wrote such statements at the dictation by the Magistrate. Should the Magistrate be aware of Sindhi language in all fairness she would have written the confessional statements by herself or given a certificate that the statements were recorded under her dictation in her immediate presence. Recording of certificate in English on a separate sheet clearly suggest that the Magistrate was hardly aware of Sindhi language. Even during the period of reflection the appellants were made to sit in the clerk room where they would be hardly free from influence and atmosphere of complete relaxation as every one including police staff would have access to the clerk's room which could not he prevented. Assuming for the sake of argument that all was well, after recording confessional statements of the appellants Magistrate handed them over to the S.H.O. For taking them to judicial custody. This state of affairs is completely far from satisfactory and can only be deprecated. Handing over of each of the appellants to the police for being taken to judicial custody completely wipes out the impression created by the Magistrate that they were free to make a confession of their own and no under compulsion to confess their guilt. This piece of evidence is, therefore, of no utility and assistance to the prosecution. It is perhaps for this reason that even the trial Court did not rely upon this piece of evidence.
19. We are further amazed to find that all the appellants were charged with the commission of the murder by operation of section 34, P.P.C. And though. The main role in the commission of the crime was attributed to appellant Riaz, remaining two appellants would have been guilty for the commission of murder by reason of sharing a common intention. However, the trial Court in its wisdom accepted entire evidence against the appellants and convicted them for the offence of robbery he convicted only appellant Riaz for murder and impliedly acquitted appellants Eidal and Ashrafuddin of the murder charge on same evidence. Fine distinction drawn by the Special Court is hardly convincing and does not appeal to reason. If the same set of evidence was found sufficient for basing conviction for commission of robbery it should equally hold good for conviction for murder.
20. Lastly maximum punishment for an offence under section 392, P.P.C. Provided by law is imprisonment not exceeding ten years while section 397. P.P.C. Prescribes minimum punishment of imprisonment for seven years but quite illegally Special Court proceeded to convict the appellants under sections 392, 397; P.P.C. And sentenced them to imprisonment for fourteen years which cannot be supported by any canon of justice or legal provision. Imprisonment for fourteen years could only be awarded if robbery was committed on the highway between sunset and sunrise.
Obviously incident in this case did not take place on the Highway as it was simply a link road.
Learned Special Court, therefore, committed gross error in the matter of passing sentences on both counts.
21. For the aforesaid Gans and reasons we are clear in our view in holding that the prosecution failed to bring home guilt of the appellants beyond a reasonable doubt. Conviction of the appellants is founded on inadmissible and defective pieces of evidence which cannot be sustained at all. Judgment and conviction is, therefore, set aside and appellants acquitted of the charge. They shall be released from custody unless required to be detained for any other cause.