G. M. SHAH, J.-The appellant was tried by the learned Additional Sessions Judge, Karachi who was pleased to convict him fort the murder of one Sarfraz Khan alias Sarku aged about 25 years for an offence under section 302, P. P. C. And sentenced him to imprisonment for life by the judgment dated 12th May 1976. Though the learned Judge was of the view that it was a cold-blooded murder, and in the ordinary course, the deceased should have been awarded the death penalty, but since the deceased was responsible for bringing dishonour to the appellant, by abducting his wife, Mst.
Roshan, who was subsequently restored to the appellant, he was awarded lesser sentence. The appellant has assailed the judgment of conviction and sentence by filing this appeal.
2. Briefly, the facts of the prosecution case are that on the night between 6th and 7th August 1972, at about 2 or 3 a.m. The deceased Sarfaraz Khan alias Sarku was sleeping inside the room of his house in Lane No, 3, Usmanabed, Karachi; whereas other inmates Sultan Khan, Alam Khan and Noor Muhammad were sleeping outside in the courtyard. At about 3 or 4 a.m , they got up on hearing of the cries of the deceased. They found the appellant had a "churl" with him and was accompanied by some one unknown tot hem, who had nothing in his hand. The appellant being already known to the witnesses, was identified on the electric pole light in the street in front of their house. The appellant and his companion were noticed for the first time at the door of their house. On seeing the witnesses, the appellant and his companion ran away. The witnesses followed them, but they escaped in the street. The deceased received two injuries and was found bleeding. P. W. Noor Muhammad went to complainant Khalas Khan, maternal uncle of the deceased and informed him at about 5-30 a.m. That the deceased was murdered by the appellant and one unidentified person. The complainant accompanied Noor M uhammad and reached the vardat: and found the deceased with two stab wounds on his chest lying dead.
3. The motive for committing the murder was stated to be that the deceased had abducted Mst.
Roshan, wife of the appellant, who was subsequently restored to him and the appellant had threatened to take revenge. The appellant had first joined Sutlej Rangers as a sepoy in the month of August 1972, at Lahore. His unit was transferred to Karachi during language disturbance and he was stated to be present at Karachi on the night between 6th and 7th of August 1972.
4. The complainant went to the Kalakot Police Station and lodged the F.
1. R. Which was recorded by A. S. I. P. Abdul Majid at 8-05 a m. Bib.
12. The F. I. R. Was forwarded to the S. H.
0. Anisur Rehman, who was on his way from his house to the Police Station. On receipt of the F. I. R., he went to the place of occurrence and inspected it in presence of the mashirs. The dead body of the deceased was sent to the hospital for post-mortem. The police recorded the statements of Karam Illahi, Noor Muhammad, Alam Khan, Sultan, Muhammad Ashraf, Yousuf, Ibrahim and Mural Khan and also examined Khalas Kban. Since the appellant was reported to have left Karachi for Lahore, A. S. I. P. Abdul Majid was deputed to arrest him. The appellant was arrested on 22-8-1972 from Sutlej Rangers, Lahore.
5. In his statement the appellant denied the prosecution version and claimed innccence. In the lower Court, he stated that he was in the army and was posted in Wagha Wing with Headquarters at Lahore at the time of occurrence. Mst. Jawahar Khatoon, sister of the deceased, was married to him whom he had divorced, which resulted in strained relations between the deceased and himself) whereas in the Court of Session, he stated that the deceased was his maternal cousin and further repeated that the sister of the deceased, who was once married to him had been divorced by him, as a result of which, the deceased and his brothers were annoyed with him. He further stated that on the relevantnight, he was on duty in Haji Camp during language riots and he could not leave the camp, even for a minute, without permission. He further continued that he alongwith other members of the company, had gone to Lahore, on the very night of the occurrence an I had reached the station at about 5 a m and was on duty during the entire night. He led no defence.
6. The autopsy on the dead body was performed on 7-8-1972 at 10-45 e.m. By Dr A. S. Shamim who was then the. Assistant Police Surgeon, Civil Hospital, Karachi. He found rigor mortis present all over the dead body. On external examination he found the following injuries : -
(1) Incised wound 2' x x cavity deep at the level of the 2' distal to the right nipple on the 6th rib and lateral to the midline.
(2) Incised wound I x 1/2' x cavity deep about 3 distal to the tight nipple and at the 8th rib about 2' lateral to the midline ' On internal examination, he found that the 6th vital right lobe of liter was found out. The liver itself was also cut. Stomach contained 4 oz. Of partly digested food. From the external, as well as internal examination, the doctor was of the opinion that the cause of his death was haemorrhage and shock as a result of homicide stabs mentioned above. The injuries were anti-mortem in nature and appeared to have been caused by a sharp-edged weapon like a knife. Both the injuries were individually sufficient to cause death, in the ordinary course of nature. Time between death and post-mortem examination was stated to be about 2-6 hours. Since the food was found misdiaested, the time between death and the last meal taken was said to be within 4 hours.
7. The ocular evidence consists of three witnesses namely Sultan. Alam Kban and Noor Muhammad who were staying with the deceased in the rented house in a room, in Lane No, 3 Usmanabad, Karachi. After the occurrence, P. W. Noor Muhammad went to the complainant &hales Khan, who was staying closeby in Lane No, 1 at a distance of about one furlong only and informed him at about 6-30 a.m. As per F. I. R., when Khalas Khan had come out of his room to go on duty. On receipt of the information about the murder of his maternal uncle, Khalas Khan went to the place of occurrence. After seeing the dead body of the deceased with stab wounds, he went to lodge the report. The main outstanding feature in the F. I. R. Is that the complainant had expressed strong suspicion at the time of lodging the report against the appellant, who is also cousin of the deceased, for committing the murder, due to previous enmity over the woman. The statement gives rise to a presumption that the occurrence was an unwitnessed one.
8. Coming to the ocular evidence of Sultan, Alam Khan and Noor Muhammad, it appears somewhat curious, that when the deceased was sleeping inside the room and they were sleeping outside in the courtyard, they could have easily seen the appellant, if they had woken up on cries of the deceased. Instead, Sultan (P. W. 1) stated that he, as well as, Alam Khan P. W. 3 and Noor Muhammad P. W. 4 were sleeping in the courtyard outside and at about 3 or 4 a.m. They got up on hearing of the cries of the deceased, where they noticed the appellant and his companion, for the first time, at the door of the house. He was armed with a 'churl' and they identified him on the strength of the street light outside in front of their house. Whereas, there is no mention of any electric pole-light, either in the Mashimama of Vardat or in the statement of A. S. I. P. Abdul Majid, as well as, the S. H.
0. Anisur Rahman, who had inspected the place of occurrence, one after another. The existence of electric pole, by itself, becomes doubtful. After the commission of the crime, the appellant was noticed for the first time at the door of the house, where, if it was dark, which admittedly it was, it would be difficult to identify the culprit, who was seen for the first time from a distance of about 20 paces. This asp:ct of the evidence amply proves that the appellant was not seen by any of the witnesses, either inflicting the fatal injuries to the deceased or leaving the room where the deceased was sleeping and coming out of ti e room and escaping from there. Almost same is the version of the remaining two witnesses Sultan and Alam Khan. There is no other supporting evidence of circumstantial nature to connect the appellant with the crime in the form of recoveries etc.
9. When this version is cc mpued with the statement of the complainant Khalas Khan (P. W. 5) who had lodged the report, on the basis of the facts narrated to him by these witnesses, namely, Sultan, Alam Khan and Noor Muhammad, the complainant had in the report stated that he strongly suspected the appellant for committing the murder of his maternal uncle due to previous enmity.
From this evidence the obvious inference is that on one bad seen the appellant, there, who was implicated on suspicion alone. We further find that the F. I. R. Was lodged on 7-8.1972 at about 8-05 a.m. After about 4 to 5 hours at the Police Station, Kalakot, which was at a distance of about one mile only. It is possible that on the basis of past enmity, the appellant was suspected and the statements of eyewitnesses, as well as, the complainant were adjusted to fit-in the prosecution version implicating the appellant.
10. When the statement of the appellant is taken into consideration, it is found that on the night of the occurrence, he was on duty in Hail Camp, as in those days, there were language riots in Karachi and he could not leave the camp even for a minute without permission. Thereafter, he had gone to the railway station and had reached there at 5 a.m. Along-with his company, for goir g to Lahore.
This version, the prosecution had not cared to rebut, that he was absent or was not on the duty during the night. The appellant was admittedly serving in the Sutlej Rangers and was posted at Karachi in those days. He was in Karachi, because of emergent conditicra, and has been admitted by the complainant, Khalas Khan, himself, as well as A. S. I. P. Abdul Majid. Since this position stands admitted by the prosecution, it is incumbent that the participation of the appellant in the crime could have been satisfctorily proved in respect of his absence from duty and not Wee versa, whereby the appellant was expected to prove his innocence by leading evidence in support of his presence on duty on that right.
11. We further find from the statement of Dr. A. S. Shamim, who had performed the post-mortem on the dead body, that he had found the stomach of the deceased contained 4 ozs. Of partly food.
This fact suggests that the occurrence could have taken placedigested earlier at about 12 mid- night or 1 a.m, Ordinarily the working class like the deceased, who was a driver, they, in the ordinary circumstances have their dinner between 7 or 8 p.m. If the occurrence had taken place at 2 or 3 a.m. The doctor would have found the food completely digested. Ordinarily it takes about six hours to digest the normal food. It gives me indication that the occurrence had taken place earlier than stated by the witnesses. From this aspect of the evidence, we have every reason to believe that the occurrence could have taken place earlier as discussed above and it was an unwitnessed crime.
12. The appellant was identified on the basis of the pole light outside in the street, which further would suggest that it was possible that assailants would have been noticed running away with their backs towards the witnesses. In addition to this, we further find that the complainant &hales Khan was apprised of the facts by Noor Muhammad at about 5-30 as deposed by him in the Court and at 6.30 a.m. When he had come out of his room to go to his duty, as was stated by him in his first information report. The complainant resided at a distance of only one furlong away from the house of the deceased. After receiving the information, the complainant had reached the place of occurrence within hour or 3/4 hour. This fact creates a doubt in our mind about the identity of the appellant and his companion.
13. There is no doubt that strong motive is alleged in the case against' the appellanti but we cann)t overlook the fact that the motive alone, as alleged, cannot take piece of evidence. Motive is a matter of speculation. It does not constitute a necessary ingredient of the offence of murder. A Motive can conveniently be alleged to avenge an old revenge, and it outs both ways. Under the circumstances, as discussed above, wo find that the case is not free from doubt. In the result, giving benefit of doubt, we accept the appeal, set aside the conviction and sentence and acquit him. He shall be released forthwith if not wanted in any other case.