' Criminal Appeal No,69 of 1995 filed by appellant Asghar, Criminal Appeal No,75 of 1995 and Criminal Jail Appeal No,62 of 1995 filed by appellant Qurban arose out of judgment, dated 1-8-1995 passed by learned Additional Sessions Judge, Kandahar by which he convicted the appellants for the offence under section 302/34, P.P.C., and the appellants were sentenced to imprisonment for life. The appellants were also extended benefit of provisions of section 382-B, Cr.P.C.
2. I propose to dispose of the above appeals by common judgment of conviction recorded by learned Additional Sessions Judge, Kandahar.
3. The report in respect of the occurrence which culminated on the death of Muhammad Moosa, was reported by his father Almandine on 29-8-1990 at 8-00 p.m. At Police Station Kandiaro at a distance of a furlong from the place of Ward at, wherein, he has stated that he along with his sons Ghulam Shabbir and Muhammad Moosa reside in village Jumo Kalhoro. His son Ghulam Shabbir ply Tanga in Kandiaro, whereas, Muhammad Moosa is cleaner on vehicle. On the day of report, he has gone to purchase house hold articles in Kandiaro Town where he met both of his sons namely Ghulam Shabbir and Muhammad Moosa and were returning and reached near Hotel of Muhammad Liaq Deepar near Chaman Bazar at about 7-00 p.m. Appellant Qurban armed with knife, appellant Asghar empty-handed and one unidentified person (Shah Nawaz acquitted accused) armed with Lathi came there. Appellant Quraban and Asghar challenged his son Muhammad Moosa by saying that he had insulted them with his uncle Lounge and also abused them, therefore, he will not be spared by saying so appellant Asghar caught hold of Muhammad Moosa, whereas, appellant Qurban gave knife blow on the abdomen of Moosa. Shah Nawaz challenged the complainant party not to go near them. The informant and Ghulam Shabbir raised cries, the appellants and the acquitted accused ran away from the place of Ward at. On cries one Allah Bache also attracted and witnessed the incident. The informant with the help of witnesses took the injured Muhammad Moosa to Taluka Hospital Kandahar for treatment, he died. Thereafter, leaving the witnesses on the dead body, informant Almandine proceeded to Police Station Kandahar and lodged the report.
4. Dr. Faiz Muhammad, the Medical Officer, Taluka Hospital Kandahar, received injured Muhammad Moosa at 6-00 p.m. For examination, treatment and certificate and he found one injury on his person.
(1) Stab wound measuring 12.6 c.m. x 1 c.m. Abdominal cavity with averted and regular margins. The patient was Inga spin condition. The above injury was caused sharp cutting substance such as knife According to the Medical Officer, the duration of the injury was one hour. The injured died in the hospital at about 7-30 p.m., police was informed about the death of the injured.
5. P.W. Allah Dino leaving the witnesses at Taluka Hospital Kandahar proceeded to police station for report which was recorded by P.W. Azizullah, A.S.-I., who after recording the F.I.R. Proceeded to Taluka Hospital, Kandiaro, where he inspected the dead body and prepared the memo. Of inspection of dead body, as well as, inquest report of the dead body of Muhammad Moosa in presence of Mashir Allah Bux and Ghulam Muhammad. Then he handed over the dead body with a letter through P.C. Kadir Bux for post-mortem, and then he recorded the statement of Allah Bache and Ghulam Shabbir who were present in the hospital. Thereafter, he proceeded to Wardat and on the potation of P.W. Almandine he inspected the Wardat and secured the blood-stained earth and sealed the same.
6. The same Medical Officer namely Dr. Faiz Muhammad conducted the post-mortem on the dead body of Muhammad Moosa which was identified by Munawar Ali and Lounge relatives of the deceased. On the external examination he found the injury referred above and on internal examination he found thorax region, the pleura congested. Pericardium congested, right side of heart full with blood. Abdomen was punctured and gastric and left Habochondrium region Peritoneum congested cutter down. Peritoneal Cavity contained with blood. Pancreas congested and healthy. Small intestines, duodenum cutter down in its junction, with jugeneum. Pancreatic Justice effused out. Transverse collar cut down, faucal. Liver and gallbladder congested. On external as well as internal examination, the Medical Officer was of the opinion that the death was due to hypo volume shock produced by loss of blood as a result of injured referred above with sharp-cutting weapon.
7. On 13-8-1990, P.W. Pehalwan Khan, S.I.P. Received the investigation of the case from P.W. Azizullah.
On 9-10-1990 he arrested appellants Qurban and Asghar in presence of witnesses Allah Bux and Ghulam Muhammad under memo. Of arrest prepared by him. On the same day he recovered knife (crime weapon) produced by appellant Qurban under memo. Of recovery prepared by him in presence of same witnesses then he examined P.Ws. Lounge and Muhammad Liaq Deepar the hotel-keeper. This concluded the investigation.
8. At the trial, the appellants and acquitted accused Shah Nawaz denied the charge and claimed their trial.
9. The prosecution to prove the case against the appellants had examined the following witnesses:--
(1) P.Ws. Allandino, Ghulam Shabbir and Allah Bachayo as eye-witnesses of the occurrence.
(2) Allah Bux witness of inspection of dead body and inquest report of Ward at arrest of appellants and recovery of knife.
(3) P.W. Azizullah who is Investigating Officer.
(4) P.W. Pehalwan Khan second Investigating Officer.
(5) P.W. Qadir Bux corpse bearer.
(6) P.W. Manzoor Hussain, Tapedar and
(7) Dr. Faiz Muhammad the Medical Officer who examined the injured Muhammad .Moosa and conducted the post-mortem on the dead body after his death.
10. The appellants, in their statements recorded under the provisions of section 342, Cr.P.C. Have denied the prosecution case and maintained that they have involved due to enmity. The appellant Qurban maintained that he was involved due to matrimonial dispute.
11. The learned Additional Sessions Judge after evaluating the evidence came to the conclusion that the prosecution was successful in bringing the guilt at home against the appellants, convicted and sentenced them as stated above, whereas the co-accused Shah Nawaz was acquitted of the charge as in the opinion of the learned Additional Sessions Judge prosecution has failed to prove its case against accused Shah Nawaz beyond any shadow of doubt.
12. The learned counsel for the appellants have contended that the evidence adduced at the trial is discrepant and contradictory to the extent of time of incident, manner in which the incident took place makes their presence at Ward at doubtful. The material available on record leads to the conclusion that it was an witnessed incident and the report was lodged against the appellants, with delay and due deliberations.
13. I have examined the record with the assistance of the parties counsel.
14. The case of the prosecution was that when Allandino along with his sons P.W. Ghulam Shabbir and deceased Muhammad Moosa were returning and reached near the hotel of Muhammad Liaq Deepar, the appellants along with one unidentified person reached there. The appellants challenged deceased Muhammad Moosa that he will not be spared as he had abused them on a day before the incident. The appellant Asghar being empty grappled with Muhammad Moosa and appellant Qurban caused knife blow. The unidentified person (Shah Nawaz accused) was armed with Lathi he challenged them. On the departure of the appellants and acquitted accused the witnesses namely Allandino, Ghulam Shabbir and Allah Bache removed the injured to Taluka Hospital Kandiaro where Muhammad Moosa died in the hospital then he left for the report.
15. The death of the deceased Muhammad Moosa in the manner alleged by the prosecution has not been disputed by the defence. The prosecution was able to prove the death of Muhammad Moosa as a result of injury caused by sharp-cutting weapon such as Chhuri or knife by examining the Medical Officer at the trial.
16. The question which has to be answered in affirmative on the basis of the material available on record, whether the prosecution was able to prove that the appellants are the author of injury on the person of deceased Muhammad Moosa?
The ocular version of the incident has been furnished by P.W. Allah Dino, father P.W. Ghulam Shabbir brother of the deceased and P.W. Allah Bachayo, the caste-fellow and co-villager. These witnesses have contradicted themselves on material points particularly (i) time of incident. According to Allandino incident took place at 7-00 p.m. Whereas according to P.W. Ghulam Shabbir the incident took place at 5-00 p.m. (ii) Participation of appellant Asghar, according to P.Ws. Almandine and Ghulam Shabbir, appellant Asghar held the deceased and Qurban caused knife injury. P.W. Allah Bache has not stated so, but according to him Shah Nawaz caused Dander blow on the head of Muhammad Moosa, who fell down then appellant Qurban caused knife blow. According to Allah Bache, he found Muhammad Moosa coming followed by the appellants and acquitted accused Shah Nawaz. He has not deposed regarding alleged challenge by appellant nor he claimed to have separated the deceased from the appellant. Muhammad Moosa raised cries which attracted him (Allah Bache) Allandino, father, Ghulam Shabbir brother of Muhammad Moosa. He claimed himself to reach at Ward at first thereafter father and brother of the deceased. According to witness Almandine, he and his sons Ghulam Shabbir and Muhammad Moosa were returning, when the appellants came and after challenging Muhammad Moosa, the appellant Asghar held him and appellant Qurban caused injuries, then Allah Bache came and separated them.
17. The evidence of the above witnesses do get support from the medical evidence to the extent of nature of injury only not about the author of the injury. The recovery of knife has no corroborative value, it has not sent to chemical examination.
18. Their evidence stand belied by the Medical Officer in respect of the arrival of the injured in the hospital and time of death, according to eye-witness Almandine the incident took place at 7-00 p.m. But the injured Muhammad Moosa was already removed to Toluca Hospital at 6-00 p.m. Much before the time of occurrence as alleged by the prosecution. Whereas witnesses Almandine and Allah Bache have deposed that the injured died just after his arrival in the hospital but Medical Officer has stated that injured died at 7-30 p.m. About one and half hours of his arrival in the hospital., ' The P.W. Almandine has deposed that he along with P.W. Shabbir and Allah Bache removed the injured in that transaction, his clothes were of stained with blood. This fact has been contradicted by none other than his own son Ghulam Shabbir who has stated that he and his father took him (Moosa) in their arms and clothes of his father were blood-stained when they took the injured in their arms.
19. The most important circumstance which escaped the attention of learned Additional Sessions Judge was that the injured was brought to the hospital by one Munawar Ali, as mentioned in the medical report Exh.26. This fact contradicts the case of the prosecution that the injured was brought to Taluka Hospital by P.Ws. Allandino, Ghulam Shabbir and Allah Bache. If such would have been the position the Medical Officer must have mentioned the name of one of them accompanying the injured. It is not the prosecution case that Munawar Ali was also with the witnesses. This fact not only belies the version of the prosecution that the above witnesses brought the injured to hospital but their presence at the Wardat and in the hospital becomes doubtful.
20. The above contradictions between the statements of P.Ws. Allandino, Ghulam Shabbir and Allah Bachayo in the manner in which the occurrence took place, as well as the arrival of the injured in the hospital much before the alleged time of the incident. The discrepancies pointed out above militate against the credibility of the witnesses warranting the rejection of their testimony.
21. All the three witnesses namely Allandino, Ghulam Shabbir and Allah Bache are residents of village Jumbo Kalahoro which is at the distance of two miles from Kandiaro Town as admitted by P.W. Allah Buz resident of the same village Jumo Kalahoro, thus, possibility cannot be ruled out that after the incident father namely, of Muhammad Moosa, Allandino was informed about the incident at his village then he came and lodged the report with due deliberations, involving the appellants even with different time of incident to cover the delay.
21-A. When confronted with the above situation Mr. Nidamuddin Brohi appearing on behalf of the State has frankly conceded that the case against the appellants was not free from doubt and he has not supported the judgment of conviction.
22. In the final analysis of the evidence, I am of the view that in this case the prosecution has failed to prove the case against the appellants beyond doubt. The ocular evidence of three witnesses does not inspire confidence being contradictory and belied by medical evidence it is also doubtful whether they had seen the incident. No doubt the unfortunate incident has taken place and as a result Muhammad Moosa lost his life but not in the manner asserted by the prosecution.
23. In the circumstances narrated above, the appeals are accepted appellants Qurban and Asghar are acquitted of the charge, their conviction and sentence are set aside. Appellant Qurban is in custody, he be released forthwith unless required in any other case. The appellant Asghar is on bail.
His bail bond stands discharged. These are the reasons for the short order announced on 2-7-1998.