This appeal is directed against the judgment, dated 30th September, 1998 passed by the Additional Sessions Judge, Hyderabad whereby appellant Muhammad Ibrahim was convicted for an offence punishable under section 302(b), P.P.C. And sentenced to imprisonment for life. He was directed to pay Rs,50,000 as compensation to legal heirs of deceased Muhammad Haroon under section 544-A, Cr.P.C. And in case of default in payment of compensation he was to undergo six months' R.I. More.
2. In this case F.I.R. Was lodged by Ahmed Khan, father of deceased Muhammad Haroon, at Police Station Qasimabad on 5-5-f991 at 10-30 p.m. The facts of the case, as disclosed in the F.I.R., are that complainant Ahmed Khan runs a retail shop at Hyderabad Town, Phase II and his deceased son Muhammad Haroon had a shop at Naseem Nagar. On 5-5-1999 the complainant went to his shop as usual and deceased Muhammad Haroon also went towards his shop. After closing his shop the complainant returned to his house. At 10-30 p.m. The complainant heard cries of Muhammad Haroon coming from the road in front of his house and he ran towards that point. He found his son Muhammad Haroon lying unconscious on the road having injury on his head from which blood was oozing out. Complainant's other son Muhammad Ayoob, who was standing there, disclosed to the complainant that while Muhammad Haroon was coming towards the house from Nasim Nagar he saw two persons chasing him, one of them was armed with hatchet and the other was empty-handed; a hatchet blow was inflicted on Muhammad Haroon from behind and then both of them went away towards village Haji Hashim Soomro along with hatchet. One Dr. Nabi Bux, who was standing at the shop of Shaikh, disclosed that he had seen the culprits and would be able to identify them on seeing them again. The shopkeeper namely Shaikh had also seen the culprits.
On cries and commotion the people of neighbour were also attracted. The complainant shifted his injured son to Civil Hospital, Hyderabad for treatment. S.H.O., Police Station Qasimabad appeared there and then the complainant went to Police Station Qasimabad where he lodged F.I.R. In the F.I.R.
The complainant disclosed that his son Muhammad Haroon had dispute over domestic affairs with his neighbours Muhammad son of Haji Haroon and Qasim son of Noor Muhammad Soomro, residents of village Hashim Soomro, who often gave out that they would kill Muhammad Haroon.
The complainant, showing his suspicion in them, stated in the F.I.R. That they, in furtherance of their common intention committed murder of his son. S.H.O. Qadir Bux recorded the F.I.R. And took up the investigation. Muhammad Hamm died in the Hospital. On the following day appellant Muhammad Ibrahim appeared at the police station at 9-00 a.m. Alongwith one Abdul Ghafoor and produced a hatchet before the S.H.0 whereupon he was arrested and the hatchet was secured from him. His judicial confession was also recorded by a Magistrate. After completing the investigation the appellant was challaned in the Court.
3. At the trial charge was framed against the appellant for an offence punishable under section 302, P.P.C. To which he pleaded not guilty. To prove their case the prosecution produced eight witnesses namely-, P.W.1 Ahmed Khan, the complianant, P.W.2 Nabi Bux, one of the eye-witnesses, P.W.3 Asghar Ali, the Medical Officer, P.W.4 Abdul Qayoom, the Magistrate who recorded the confession, P.W.5 Muhammad Siddiq another eye-witness, P.W.6 Muhammad Yousaf, the Mushir, P.W.7 Qadir Bux, the Investigating Officer and P.W.8 Rasheed Ahmed, Tapedar who prepared the site sketch. Statement of the appellant was recorded under section 342, Cr.P.C. Wherein he denied the case of prosecution and regarding his confession he stated that he was never produced before any Judicial Officer. He stated that he had not produced hatchet before the police but the same was foisted on him. He examined himself on oath but did not lead any defence. The learned Additional Sessions Judge on assessment of the evidence convicted the appellant and sentenced him as above.
4. Learned counsel for the appellant submitted that the prosecution has utterly failed to establish the case against the appellant. He,, in support of his argument, raised the following contentions:--
(a) Name of the accused was not mentioned in the F.I.R.;
(b) Suspicion was shown specifically in Muhammad and Qasim;
(c) F.I.R. Shows that complainant's son Ayoob informed him about the incident but this important witness was not examined at the trial for no reason;
(d) Muhammad Siddique was produced as star witness but his name was not mentioned in the F.I.R.;
(e) Nabi Bux's name is mentioned in the F.I.R. But it is stated in the that he would identify the assailant on seeing them whereas at the trial he stated that the appellant was known to him;
(f) In the inquest report Qasim and Muhammad are indicated as the suspected assailants;
(g) The statements of eye-witnesses examined at the trial were, in fact recorded by the Investigating Officer on the day at a belated stage;
(h) There is missing link in the story as the appellant for the first time figured in the story, when he was produced by Abdul Ghafoor before the police but Abdul Ghafoor has not been examined;
(i) Judicial confession suffered from many irregularities including the fact that the accused was returned to same police after recording confession thereby its voluntariness was beyond satisfaction;
(j) Further, the Magistrate stated that he had obtained L.T.I. Of the accused but the confession bears his L.T.I. As well as signature which part of the story has been explained by the accused stating that the police obtained his signature on papers while the prosecution has not furnished any explanation against this;
(k) The Mashirnama of recovery of hatchet is silent if there were blood stains on the hatchet;
(1) The medical evidence is in conflict with ocular evidence, in that the eye-witness says that sharp side of hatchet was used whereas the medical officer speaks of weapon of offence as a Lathi;
(m) There is yet another missing link in the medical evidence, that is to say the Doctor who first examined the injured has neither been produced at the trial nor the certificate of injuries has ever been prepared or produced.
5. Mr. Anwar Ansari, learned counsel for the State submitted that the prosecution, at the trial, fail to prove the charge against the appellant beyond reasonable doubt, therefore, he did not support the conviction.
6. The case of prosecution mainly rests on the following pieces of evidence:--
(i) Ocular testimony of P.W.2 Nabi Bux and P.W.5 Muhammad Siddique.
(ii) Medical evidence.
(iii) Production of crime weapon by the appellant.
(iv) Judicial confession of the appellant, and
(v) Motive.
7. Out of the two eye-witnesses name of only one, namely Dr. Nabi Bux, appears in the F.I.R. Who was stated to be present at the shop of one Shaikh. Although the other eye-witness named in the F.I.R. Is the shopkeeper Shaikh, but he has not been examined at the trial and no plausible explanation has been furnished for withholding his evidence, instead one Muhammad Siddique, whose name does not find mention in the F.I.R. Has been examined as an eye-witness. However, it is to be examined if the ocular testimony., furnished by both the eye-witnesses, is confidence inspiring.
8. The witness Nabi Bux has been named in the F.I.R. As 'Dr. Nabi Bux' but in nis deposition he has clarified that he is a dispenser in Liaquat Medical College Hospital, Jamshoro and not a doctor. I am not convinced even with this version of the witness for the reason that when his statement was recorded by the Additional City Magistrate, Hyderabad, which he produced as Exh.4-A, he put his left thumb-impression (LTI) on the statement which indicates that he is an illiterate person and cannot put his signature. As far the substance of his evidence, recorded at the trial, is concerned it shows that he has directly implicated appellant Muhammad Ibrahim as the person who inflicted hatchet blow on deceased Muhammad Haroon. He deposed that he was sitting at the General Store of one Shaikh whose name he did not remember, and at about 10-30 p.m. He saw Muhammad Haroon coming along the road from Nasim Nagar. When Muhammad Haroon reached at the main road leading towards North, Ibrahim Soomoro gave him hatchet blow as a result of which Muhammad Haroon fell down. According to him, Muhammad Siddique who was sitting in his cabin also came at the site and cries of Siddique attracted Ahmed Khan, the complainant and Muhammad Ayub. He stated that appellant Muhammad Ibrahim escaped from the scene. According to him, Ahmed Khan took Muhammad Haroon to hospital.
9. Evidence of this witness read with F.I.R. And the medical evidence demonstrates a very uncertain situation. He has deposed in the cross-examination that on that night at about 12-30 midnight he went to hospital and met the complainant there and informed him that he had seen the occurrence and that Muhammad Ibrahim had given hatchet blow to Muhammad Haroon. F.I.R.
Shows that complainant Ahmed Khan appeared at Police Station Qasimabad at 11-30 p.m. And lodged F.I.R. The Investigating Officer has stated that after recording the F.I.R. He proceeded to the place of occurrence which he inspected on pointation of complainant Ahmed Khan and he prepared such Mashirnama in presence of Mashirs which has been produced at the trial as Exh.11- A. The Mashirnama shows that the place of incident was inspected at 12-00 midnight. Certainly, the inspection of the place of incident and preparation of Mashirnama would have taken some time which may stretch even beyond 1-00 a.m. It would follow that P.W.2 Nabi Bux had met Ahmed Khan at the hospital before he left for lodging F.I.R. But it is quite surprising that the complainant did not state in F.I.R. That P.W. Nabi Bux had informed him that appellant Ibrahim was the person who inflicted hatched blow on deceased Muhammad Haroon. The complainant has, however, in his evidence recorded at the trial, altered complexion of the prosecution story as given in the F.I.R., by making a number of improvements much beyond proportion. The versions given by him in the F.I.R.
Were put to him in the cross-examination which he denied totally. He denied his statement given in the F.I.R. That he was informed by his son Ayoob that two persons were chasing Muhammad Haroon and one of them inflicted hatchet blow on him. However, he admitted that Dr. Nabi Bux did not give the name of appellant Muhammad Ibrahim. He made an improvement that he had mentioned the name of P.W. Siddique in the F.I.R. And that Siddique told him that Ibrahim had given hatchet blow to his son Muhammad Haroon, although no such version is recorded in the F.I.R. He denied that when police reached the hospital thereafter he went to police for lodging F.I.R. He also denied his version that his son Muhammad Haroon had domestic dispute with Muhammad and Qasim and that they often declared that they would kill his son Muhammad Haroon. In this manner he has backed out from the major portion of his version given in the F.I.R. But at least he has admitted that P.W.2 Nabi Bux did not give him the name of appellant Ibrahim.
10. On plain reading of the versions discussed above it appears that P.W. Nabi Bux had not given the name of appellant Ibrahim to complainant Ahmed Khan and for this reason the complainant did not state so in the F.I.R. Lodged by him. This, appears to be a major development. Its consequence is to be appreciated in the light of the related pieces of evidence. Firstly, the evidence of Medical Officer Asghar Ali, shows that on external examination of the dead body of Muhammad Haroon he found a stitched lacerated type of wound 2" X 1/2" at mid of occipito temporal aspect of head. This was the only injury on the body of deceased Muhammad Haroon and in the opinion of Medical Officer it proved to he fatal. He further opined that the injury was caused by some hard and blunt substance such as Lathi, but the witness, Nabi Bux has asserted in the cross-examination that the injury was caused by the sharp side of hatchet. Obviously, in view of this conflicting version the credibility of Nabi Bux's testimony becomes questionable.
11. As regards Nabi Bux's statement recorded under section 164, Cr.P.C. It is perfectly clear from the evidence of the Magistrate P.W.4 Abdul Qayoom and the Investigating Officer that the statement under section 164, Cr.P.C. Was recorded on the following day of the incident, a few hours after the arrest of the appellant. The appellant is said to have been arrested on 6-5-1991 at 9-00 a.m. Vide Mashirnama Exh.11-E and at 1-00 p.m. On that day he was produced before the learned Magistrate for recording his confession and soon after recording of confession the statements were recorded under section 164, Cr.P.C. There is no evidence on record to suggest that notice was served on the appellant within the meaning of section 265-J, Cr.P.C. Before recording to statements of P.Ws.
Under section 164, Cr.P.C. The inevitable inference, drawn in this view of the matter, would be that neither copies of the relevant documents including F.I.R., Mashirnamas and statements under section 161, Cr.P.C. Were furnished to the appellant, nor he could avail an opportunity to consult an Advocate. The principle laid down in the authority, Abdul Hakeem and another v. The State PLD 1982 Karachi 975 fully applies to the instant case wherein the statements under section 164, Cr.P.C.
Recorded in similar circumstances were ruled out of consideration. Moreover, P.W. Nabi Bux, stated that the S.H.O. Asked him to put his LTI on the statement under section 164, Cr.P.C. This admission indicates indulgence of S.H.O. In the matter of performance of function of the Magistrate and wholly washes away the sanctity attached to the statement recorded under section 164, Cr.P.C. And in the circumstances there is justifiable reason to rule it out of consideration.
12. As far the other eye-witness Muhammad Siddique is concerned, his version, recorded at the trial, shows that he was sitting at his Kiryana Shop when he saw deceased Muhammad Haroon going towards his house from Nasim Nagar while appellant Muhammad Ibrahim was coming from back side having hatchet in his hand and after covering a distance of 15 paces he inflicted a hatchet blow on the head of deceased Muhammad Haroon. According to him, P.W. Nabi Bux also came there while appellant Ibrahim ran away and on cries, father and brother of Muhammad Haroon came over there and removed Muhammad Haroon in ambulance to hospital. Main drawback with regard to his testimony is that his name does not figure in the F.I.R. The complainant, in cross- examination, has tried to cover up this lacuna by stating that he had mentioned the name of P.W.
Siddique in the F.I.R., but then nothing could come on record to suggest that S.H.O. Qadir Bux recorded an incorrect F.I.R. On the contrary the Investigating Officer Qadir Bux who was examined as P.W.7, deposed that he had read over the contents of the F.I.R. To the complainant who confirmed the same to be true and correct and then put his signature on the same. In cross- examination he has admitted that the complainant, in his FIR., showed suspicion againsi Muhammad and Qasim as deceased Muhammad Haroon had dispute with them. He admitted that the name of appellant Muhammad Ibrahim was not at all mentioned in the F.I.R. He further stated that he had supplied a copy of the F.I.R. To complainant.
13. In order to avert the effect of non-mentioning of his name in the F.1.R., Siddique himself tried to put up an explanation by stating that after the incident when Muhammad Haroon was taken to hospital he did not know at what time the complainant returned to his house. He added that he had no conversation with complainant after his return from hospital and he did not know at what time the F.I.R. Was lodged. This explanation does not appear to be reasonable. He has admitted that the complainant was his cousin and that his house is situated at a distance of half furlong from his shop which is near the place of incident while the house of complainant is at a close distance from there. Being such a close relative how could he remain unconcerned if he was actually present at the place of incident. It is also unbelievable that when on cries father and brother of the deceased came over there he being cousin of father of the deceased remained silent and did not tell his cousin that the assailant was none else but Muhammad Ibrahim. It is beyond imagination that the complainant would spoil his case by showing suspicion against Qasim and Muhammad to be the assailants. The version given by Muhammad Siddique hardly deserves any credit.
14. As regards the medical evidence it has been discussed earlier that in the opinion of the Medical Officer the blow was given with a hard and blunt substance such as Lathi. No evidence has come on record to suggest that the assailant used blunt side of the hatchet while inflicting the blow. Both the eye-witnesses have stated that the assailant caused the hatchet blow which, in ordinary course, means that the sharp side of hatchet was used and in particular P.W. Nabi Bux has stated that the assailant used the sharp side of the hatchet. The medical evidence, therefore, does not support the case of prosecution and as such no material corroboration is rendered to the evidence of eye-witnesses whose testimonies even otherwise lack credence.
15. With regard to the judicial confession it may be mentioned that according to the learned Magistrate, the appellant was produced before him at 1-00 p.m. And after observing formalities, his confession was recorded at 3-00 p.m. In cross-examination he admitted that after recording confession he sent the appellant to the judicial custody through the same police who had brought the appellant to him for confession. Learned counsel for the appellant correctly pointed out that the act of handing over the appellant to the same police detracts from the sanctity of a judicial confession. In such circumstances voluntariness of the judicial confession which is an essential prerequisite, becomes doubtful.
16. It is also the foremost condition that the, judicial confession shall ring true and conform to the prosecution story. Learned counsel for the appellant contended that the learned Magistrate P.W.4 Abdul Qayoom has deposed that after recording the confession of the appellant he read over the contents to the appellant who then put his left thumb-impression but the confession bears the signature of the appellant at two places. I have gone through the original record. The signature of the appellant on the receipt Exh.1 appears to be the same and the learned State Counsel also did not controvert the above contention. This is a serious drawback and cannot be ignored. In consequence of these infirmities the judicial confession loses its probative value.
17. The other corroborative piece of evidence adduced by the prosecution relates to production of hatchet by the appellant at the police station on the following day in the morning. On this point the Investigating Officer Qadir Bux has stated that appellant Muhammad Ibrahim accompanied by Abdul Ghafoor, a relative of both the parties, appeared at the police station alongwith hatchet and confessed that he had killed deceased Muhammad Haroon with that hatchet. He secured the hatchet and arrested the accused and prepared such Mashirnama after sealing the hatchet in presence of Mashirs. The seizure memo. Was produced by P.W. Yousuf as Exh.11-E. On a plain reading, it is found that this memo. Does not mention that the hatchet appeared to be stained with blood. This was all the more necessary when the medical evidence has come in conflict with the ocular evidence as to the nature of weapon used while causing the injury. As already discussed, the eye-witness Nabi Bux has stated that the blow was given with a sharp side of hatchet but the Medical Officer has opined that the injury was caused by hard and blunt substance such as Lathi, therefore, in view of this discrepancy it was imperative on the part of prosecution, if they pressed into service this recovery as recovery of crime weapon, to establish that back side the hatchet was stained with blood so that it could be argued that the injury was caused with blunt side of hatchet.
The Investigating Officer, in his evidence, has not stated that the hatchet was stained with blood.
The Mashir Muhammad Yousuf has stated that the appellant produced blood-stained hatchet but he has also not clarified which part of the hatchet had blood stains. The Chemical Examiner's Report shows that the hatchet was stained with blood but it is not specifically mentioned as to which part of the hatchet had blood stains. However, the Chemical Examiner's Report indicates that the case property including the hatchet was forwarded to the Chemical Examiner under Letter No, Nil dated 25-5-1991 by hand through P.C. Ali Hussain No,416 but it was actually delivered in the office on 6-8-1992 that is to say that after a period of one year and three months. This delay in delivery of the important material to the chemical examiner has not been explained. The police constable to whom it was entrusted for delivery had no reason to retain this property for a longer period. In the circumstances, when no explanation, at all, has been furnished in this regard possibility of tampering with the articles cannot be ruled out. In peculiar circumstances of the case that the memo. Of recovery does not mention that the hatchet was stained with blood, safe dispensation of justice would demand that this piece of evidence may not be treated as an independent corroboration on account of aforementioned drawbacks.
18. On the point of motive the case, at the outset proceeded with a direct allegation in the F.I.R.
Against one Qasim and Muhammad alleging. That on account of domestic dispute they had a grudge and they often gave out that they would kill Muhammad Haroon. Even in Entry No,7 of the inquest report Exh.14-A it has been mentioned so but at the trial the complexion of the prosecution was altogether changed on this point.
19. On she newly set-up motive the prosecution relied only on the judicial confession of the appellant which has already been discussed in the foregoing paras. And disbelieved. However, it may be pointed out that according to this judicial confession Exh.8 the deceased had illicit relations with appellant's wife Mst. Mariam and he had also arranged a Faisla but the matter did not end. About three days back he had seen Muhammad Haroon roaming near his house, therefore, he made up his mind to kill him and on 5-5-1991 at 10-30 p.m. He inflicted a hatchet blow on Muhammad Haroon on account of Ghairat. The complainant, who is father of the deceased, is absolutely silent with regard to the point of motive. The eye-witness Muhammad Siddique happens to be cousin of the complainant, he has also completely ignored this fact. There is absolutely no direct evidence on this point, therefore, there is no hesitation in holding that the prosecution failed to prove the motive. No doubt absence of evidence on the point of motive by itself would not damage the case but it is the settled law that once the motive is set up it is to be proved by the prosecution beyond doubt and although there is no hard and fast rule to prove the motive but failure to furnish formidable evidence can lead to adverse inference against the prosecution.
Reliance in this respect is placed on the cases Muhammad Khan and others v. Zakir Hussain and others PLD 1995 SC 590 and Waris Ali alias Dulli and others v. The State 1999 SCMR 1469. As already discussed, the complainant side has modified the story and the motive was also changed but no evidence could come on record through the witnesses as regards the newly set-up motive. It should, therefore, reflect adversely on the case of prosecution about the involvement of the present appellant in the offence.
20. Learned counsel vehemently argued that the prosecution has withheld the evidence of some persons whose presence at different occasions was, otherwise, established and significance of their evidence could not be denied. He pointed out that according to F.I.R. Muhammad Ayoob son of the complainant and brother of the deceased is stated to be present and when complainant Ahmed reached the place of incident, he found Muhammad Ayoob standing there who disclosed to him that two persons were chasing the deceased and one of them inflicted hatchet blow upon deceased Muhammad Haroon. Muhammad Ayoob was not produced in the Court and the learned State Counsel conceded that he was an important witness and withholding of his evidence creates some doubt. It appears that it as the version of Muhammad Ayoob that the assailants were two in number and on these premises suspicion was shown in Muhammad and Qasim but when the prosecution story was altered the complainant party found it necessary to withhold the evidence of Muhammad Ayoob, presumably apprehending that Ayoob may deliver a version which may not conform to the newly set-up story. I would agree with the learned counsel for appellant that withholding of evidence of Ayoob shall be charged as a discredit to the case of prosecution.
21. Similarly, there is mention of Shaikh, the shopkeeper who is said to have seen the incident but he has also not been examined, conceivably for the reason that he may not give suitable evidence matching with the altered story. Thus, in view of the principle underlying the illustration (g) to Article 129 of the Qanun-e-Shahadat Order, 1984, as rightly argued by the learned counsel for the appellant, an adverse inference may be drawn against credibility of the case of prosecution owing to non-production of the evidence of three important witnesses namely Muhammad Ayoob, the brother of deceased, Shaikh, the shopkeeper, both nominated in the F.I.R. As eye-witnesses, and P.W. Abdul Ghafoor who is said to have produced the appellant before the police whereafter the prosecution story was modified and the appellant was implicated in this case. In view of these circumstances of the case, considered with the other drawbacks, discussed earlier, the learned counsel was correct in relying on the observations made by the Hon'ble Supreme Court in Ramzan alias Jam v. The State 1997 SCMR 590 wherein some identical features led to acquittal of the accused. For instance in the cited case name of the accused was not mentioned in the F.I.R. But he was subsequently substituted for the persons accused in the F.I.R. After preparation of the inquest report and the eye-witnesses were not mentioned in the F.I.R. While the ocular evidence Which was interested did not inspire confidence and stood belied by medical evidence and the complainant as well as the father of the deceased were also not examined. In the instant case also the brother of the deceased who is said to be eye-witness of the occurrence, as pointed out above, was no produced at the trial while Siddique, the cousin of the father of the deceased, was examined as eye-witness although his name did not transpire in the F.I.R. The ocular evidence of other eyewitness namely Nabi Bux did not inspire confidence for several reasons as already pointed out in the earlier part of this judgment and more particularly it was belied by the medical evidence; the appellant was also not named in the F.I.R. But he was subsequently substituted for the persons accused in F.I.R. And the manner in which the appellant's role was indicated in the story could safely be explained by P.W. Abdul Ghafoor but he was not examined by the prosecution. Thus, it is perfectly clear that, following the principle laid down by the Hon'ble Supreme Court in the cited authority, this, also is a case of acquittal.
22. Further, the other pieces of evidence such as judicial confession and recovery of crime weapon were not free from doubt and as regards the motive the prosecution failed to produce any evidence and simply relied on the version given in confessional statement which, as already observed, did not carry the legal sanctity attached to a judicial confession.
23. For the foregoing reasons, it would be in consonance with safe dispensation of justice that the benefit of doubt be extended to the appellant. Accordingly the appeal is allowed and the finding of conviction of the appellant is set aside and the appellant is acquitted of the charge. The judgment was announced on 21-5-1999 by a short order, these arc the reasons for the same.