1. ' By this appeal the appellant has challenged the judgment, dated 26-4-1997 passed by the learned IXth Additional Sessions Judge, Karachi (East), whereby the appellant was convicted under section 302(c), P.P.C. And sentenced to suffer R.I. For ten years and a fine of Rs,25,000 or in default whereby undergo R.I. For one year more.
2. ' The facts leading to the filing of this appeal are that complainant Saleem Khan resides along with his deceased brother Noor Khan at House No,G-290, Natha Khan Goth, near Masjid-e-Rah Guzar, Karachi. His brother Noor Khan, aged about 22 years was employed on Daily Wages basis in P.I.A.
3. On 5-101994 while he was standing alongwith his friend Zahid son of Saeed. They started abusing to each other upon which complainant intervened and Zahid proceeded towards his house. The case of prosecution further is that while complainant and deceased were still there, and it was about 2- 45 p.m. Appellant Zahid appeared alongwith dagger in his hand and hurlded the dagger and said that he will not spare and attacked upon the deceased Noor Khan who received injuries on his left hand and on the left side of his chest. He, started bleeding from injuries and then appellant ran away. Thereafter, complainant and other persons took the injured to Jinnah Hospital, Karachi, where he succumbed to injury. The statement of complainant was recorded under section 154, Cr.P.C. Which was later on incorporated into the F.I.R. Later on appellant was arrested on 6-10-1994.
4. He produced the dagger from the Kitchen of his house on 12-10-1994 in presence of Mashirs Nasim Jan and Javed Iqbal. He was sent up to face the trial on completion of investigation.
5. ' Formal charge was framed against him to which he pleaded not guilty and claimed trial.
6. ' At the trial, prosecution examined complainant Saleem Khan, who produced his statement under section 154, Cr.P.C. And F.I.R. P.W, Aslam Khan produced inquest report, P.W. Nasim Jan produced memo. Of recovery of crime weapon, P.W. Shahzad Imran produced memo. Of place of incident, P.W. Tariq Mehmood produced the memo. Of arrest of appellant, P.W. Javed Iqbal was given up, Investigating Officer Haider Raza produced copy of entry from Roznamcha, P.W. Dr. Abdul Hameed Shaikh produced medico-legal certificate of injured/deceased, Sub-Inspector Syed Amir Raza, Investigating Officer was also examined.
7. ' Appellant in his statement under section 342, Cr.P.C. Denied the allegations of prosecution and claimed innocence. He further stated that he was acquitted by the learned Judicial Magistrate in a case registered against him under section 13-E, Arms Ordinance. He produced copy of such judgment. He, however, did not examine himself on oath and also did not examine any person in his defence.
8. ' The trial Court framed the following points for determination:--
(1) Whether the accused had any alteration with the deceased Noor Khan on 5-10-1994, near the house of the accused bearing No,G-107, Natha Khan Goth, Karachi?
(2) Whether due to that alteration the accused went into his house and brought a dagger and inflicted injuries to the deceased Noor Khan who succumbed to the said injuries and died as such in that manner whether the accused committed the murder of the deceased Noor Khan?
(3) Whether the deceased died an unnatural death due to injuries caused by a dagger?
(4) What sentence should be awarded to the accused if he is found to be guilty of the offence amongst herein above?
9. ' On the assessm ent of evidence appellant was found guilty of the offence and was convicted and sentenced.
10. ' I have heard Mr. Shoukat H. Zubedi on behalf of appellant and Mr. Jawed Akhtar on behalf of State and have gone through the judgment and record and proceedings of the case.
11. ' The learned counsel for the appellant at the very outset submits that the entire case hinges upon sole testimony of complainant Saleem Khan, the only eye-witness of the incident whose evidence suffers from infirmities and cannot be believed for the purpose of conviction. According to him, his evidence has not been corroborated by any other independent circumstantial or corroborated piece of evidence. According to him this is a case in which there is no F.I.R. And the entire case has proceeded in absence of the same. With regard to the same the complainant in his examination- in-chief has categorically stated that at about 6-45 p.m. Police came at his residence and prepared necessary documents and also recorded his Fie has further stated that police had also recorded his statement under section 154, Cr.P.C. On the basis of which F.I.R. Was registered which bears his signature. The learned counsel argued that in fact said statement does not bear the signature of the person who recorded the same, whereas the F.I.R. Only bears the signature of Investigating Officer Amir Raza and does not bear the signature of complainant, therefore, cannot be equated with F.I.R. According to him, Investigating Officer Amir Raza has given a contrary view of this and has stated at the trial that F.I.R. Was lodged at police station where complainant Saleem Khan had come. He read over the contents of the F.I.R. To the complainant who put his signature over it. He had also produced Roznamcha entry which was signed by Moharrir of the Police Station.
12. ' Mr. Shoukat H. Zubedi further contended that the evidence of complainant cannot be believed for the reasons that he has not stated truth at the trial. According to him the complainant has specifically stated that after the death of deceased in hospital, post-mortem was conducted and thereafter, the dead body was brought to the home, which is not correct as no post mortem at all was conducted which is verified from the statement of Investigating Officer. Irrespective of this, learned counsel has pointed out so many other contradictions with regards to the location of the injuries on the body of deceased, as such the prosecution evidence does not inspire confidence. He further contended that complainant as well as his father Aslam Khan, the signatories to the inquest report, had stated therein that deceased had quarreled with some unknown persons and was attacked by some unknown culprit. He lastly contended that according to the F.I.R. As well as statement of the complainant, there was no eye-witness of the incident, as such the subsequent examination of P.W. Shahzad Imran and Tariq Mehmood, as witnesses of the incident, has got absolutely no value. In support he has relied upon the case-law reported in 1985 SCM R 410, NJ 1974 Crl. Cases 486, 1972 PCr.LJ 1095 and 1976 PCr.0 405.
13. ' The learned counsel appearing for the State, on the other hand, fully agreed with the contentions of the appellants counsel and stated that prosecution has miserably failed to prove the case against the appellant and did not support the conviction and sentence awarded by the learned trial Court.
14. ' Admittedly a statement, said to be recorded under section 154, Cr.P.0 placed on record by the complainant, does not bear the signature of its author. Photo copy of F.I.R., produced at the trial by the complainant, only bears the signature of A.S.-I. S. Amir Raza and has not been signed by the complainant. In such situation a question arises as to whether these two documents can be treated as F.I.R. Or not.
15. ' From the provision of section 154, Cr.P.C. It is evident that the condition precedent for lodging F.I.R.
16. Is that the information given orally or in writing shall be reduced to writing in 154, Cr.P.C. Book at that police station and shall be signed by the complainant. Here in this case F.I.R. Said to have been lodged under section 154, Cr.P.C. Book has not been signed by the complainant as such cannot be equated with an F.I.R. Moreover, according to the complainant his statement under section 154, Cr.P.C. Was recorded at his A house by the police on the day of incident at about 6-45 p.m., on the basis of which F.I.R. Was registered. The statement, which even otherwise not lodged at police station, cannot be said to be an F.I.R. Irrespective of this the complainant's version has been seriously contradicted by the Investigating Officer Syed Amir Raza, who had deposed that the complainant came at police station where his F.I.R. Was recorded, the contents of which were read over to the complainant who put his signature. In this respect it would be safe to maintain that both the complainant as well as Investigating Officer Syed Amir Raza having stated truth and should not be believed on this aspect of the case.
17. ' The complainant in his statement has further stated that after the death of deceased at hospital his post-mortem was conducted which is not a fact as according to Investigating Officer Syed Amir Raza and Dr. Abdul Hameed the dead body of the injured was taken away by the complainant party from the hospital and no post-mortem was conducted. On this aspect the complainant has not stated true facts as such he would be said to be a witness who has spoken truth about the incident. Above all, he in his statement at trial has not shown presence of any other witnesses excepting him and the deceased, as such the subsequent improvement made in the case of prosecution where P.Ws. Shahzad Jahangir and Tariq Mahmood were examined as eye-witnesses is a deliberate act with mala fide intentions and no credential value can be given to their testimony. It is well-settled principle of law that no value can be given to the evidence of witness, whose name does not appear in the F.I.R.
18. ' P.W. Aslam Khan, the father of the deceased has stated that when he came out of his house on commotion saw his son Noor Khan lying injured on the ground in pool of blood. In cross- examination he has stated that he has not seen the appellant causing injuries to the deceased.
19. Throughout his examination he has stated nothing about presence of the complainant, as such the very initiation of the case on the statement of the complainant suffers from serious doubt, the benefit of which goes in favour of the appellant. On perusal of the inquest report produced by this witness and signed by the complainant as well as this witness, it is found therein that the deceased was done to death by some unknown culprit. This belies the entire case of prosecution which becomes of highly doubtful nature with regard to the commission of offence by the appellant.
20. ' P.W. Shahzad Imran definitely is set up witness, about whom a reference is given earlier has given a contrary view of the incident. According to him on the day of incident at about 2-45 p.m. While he came out of his house and saw that Tariq Mahmood, Iqbal, Saleem Khan and his father Aslam Khan standing and deceased Noor Khan lying on the ground in injured condition. He also saw appellant Zahid Hussain running from the scene of occurrence with dagger in his hand. In cross- examination he has stated that he cannot see the place of occurrence from his house and the moment he came out of his house he saw 5/6 persons running ahead of him and when he reached at the place of incident he saw the appellant near the injured with dagger in his hand. This witness cannot be believed and his testimony is not trustworthy mainly for the reasons that in the first instance his name does not appear in the F.I.R. As an eye-witness and in the second instance he in his examination-in-chief has stated that when he came out of his house, he saw the appellant running from the scene of offence with dagger in his hand, whereas in cross- examination he stated that he saw appellant near the injured with dagger in his hand.
21. ' Similarly no value can be given to the evidence of P.W. Tariq Mahmood, whose name also does not appear in the F.I.R. As eye-witness of the incident. In his examination-in-chief he has stated that he could not see the weapon, appellant was carrying with which he caused injuries to the deceased. He has further stated that he had not seen the injuries on the person of the deceased.
22. This witness was declared hostile as such no value can be given to what he has stated.
23. ' Dr. Abdul Hameed, who examined the injured at the very initial stage, had noted two injuries over the body of the deceased while he was injured, the same are as under:-- "No,1 . Stab wound 3.5 c.m. x 1.5 c.m. On mid epigastrium margin clear cut regular cavity deep.
24. ' No,2. Incised wound 5 c.m. x 1.5 c.m. On left side hand, palmer aspect associate swelling positive.
25. Movements are restrictive. After some time injured expired in casualty."
26. ' He has further stated that injured expired in casualty and such entry was made at Faisal Colony.
27. He has produced photo copy of medical certificate as original was not available on record.
28. According to this witness as well as Investigating Officer Syed Amir Raza, the post-mortem was not conducted and the body of the deceased was taken away from the hospital by his relatives. In such circumstances where post-mortem has not been conducted the factum of death is shrouded in mystery. The cases of Abdul Latif v. The State and Muhammad Bux v. The State reported in 1972 PCr.LJ 1095 and 1976 PCr.LJ 405 respectively, the Lahore High Court has held that when no post- mortem is carried out it cannot be safely inferred that the death of the deceased was the direct result of G the injuries suffered by him. Thus, post-mortem was necessary to prove the fact that the death has occurred due to injuries received on account of the said accident. The Honourable Supreme Court in the case of Saifullah v. The State 1985 SCM R 410 at page 415 has held the incident to be witnessed one as both eye-witnesses the real brothers and uncle of deceased had shown extraordinary strange conduct as close relatives and tried their best to suppress certain factsIn this case it is also held that recovery of blood-stained weapon even if believed could only be used as evidence corroborating testimony of eye-witnesses if any. Testimony of eye-witnesses having been excluded the recovery was hardly of any use. In the case in hand the recovery of dagger cannot be believed as firstly, H it is not blood-stained and secondly, the Mashirs of recovery have not supported.
29. ' From the above discussion of the evidence and case-law I am of the considered opinion that prosecution has failed to prove case against the appellant, who is accordingly acquitted. His appeal is allowed, conviction and sentence is set aside. The appellant is in custody and should be released I] forthwith if not required in ray other case.