' By this judgment I propose to dispose of this appeal preferred by appellant against the judgment, dated 11-5-1998 convicting him under section 302, P.P.C., to undergo imprisonment for life and to pay a fine of Rs,50,000 and in default thereof to undergo R.I. For one year and under section 324, P.P.C., to undergo imprisonment for seven years and a fine of Rs,20,000 and in default to undergo R.I., for, six months.
2. The brief facts of the prosecution case, as per F.I.R., Exh,9/A, are that appellant while living in the village namely Ahmed Khan Sario, had purchased from Safar the P.W.1 Pacca bricks for a sum of Rs,2,000 with the promise to make payment of Rs,2,000 after some time. About three months before the incident, appellant had shifted from village Ahmed Khan Sario to Allahabad Mohalla, Larkana.
On the day of incident viz. 24-9-1990 Safar the P.W.1 along with his son Niaz Ali the deceased and nephew the Eddan, the P.W.3 left their village early in the morning and reached at the house of the appellant at about 7-30 a.m. And demanded the payment, upon which, the appellant gave hakal to Niaz Ali and accused him of illicit terms with his wife Mst. Razul the P.W.2; the appellant attacked Niaz Ali, with a wooden Patti thereby caused injuries on his chest, head etc. Who fell down on the ground. Safar the P.W.1 raised cries; the appellant left Niaz Ali and with the some wooden patti attacked his wife Mst. Razul the P.W.2 who after receiving injuries fell down out of the house.
Appellant ran away along with the wooden patti. P.W.1 and P.W.3 Niaz Ali and found injuries on his head, chest and other parts of the body; he was bleeding and was dead. P.W.1 and P.W.3 examined Mst. Razul the P.W.2 and found that she had injuries on her various parts of the body and was bleeding. Safar the P.W.1 left Eddan the P.W.3 with the dead body of Niaz Ali and shifted Mst. Razul to C.M.A. Hospital, Larkana for treatment; and thereafter, lodged the F.I.R.
3. After recording the F.I.R., the Investigating Officer, Asghar Ali Alvi, visited the place of vardat, prepared mashirnama, the inquest report of dead body of Niaz Ali, the mashirnama of injuries on the person of Mst. Razul, in presence of Muhammad Ali the P.W.4 and Momin Khan the mashirs. He examined Eddan the P.W.3 Mst. Razul the P.W.2 under section 161, Cr.P.C. On 12-10-1990 Invetigating Officer in presence of mashirs H.C. Abdul Majeed the P.W.7 and P.C. Gaji Bux arrested the appellant and prepared mashir nama. On 15-10-1990 at the potation of appellant Investigating Officer recovered blood-stained wooden patti, which was secured in presence of mashirs H.C. Abdul Majeed the P.W.7 and P.C. Gaji Bux. The Investigating Officer sent the dead body of deceased Niaz Ali for the purpose of autopsy to C.M.C. Hospital, Larkana. On 21-10-1990 Mst. Razul the P.W.2 was produced before Magistrate for recording her 164.. Cr.P.C., statement in presence of the appellant.
After completing the investigation, Investigating Officer put up the challan in the Court.
4. The charge Exh.3 was framed against the appellant by the learned V-Additional Sessions Judge, Larkana on 12-8-1992 to which he pleaded not guilty and claimed to be tried.
5. At the trial, prosecution examined complainant Safar the P.W.1 and he produced F.I.R. Exh.9/A, Mst.
Razul the P.W.2 who produced her statement under section 164, Cr.P.C., as Exh.10/A, Eddan the P.W.3, Muhammad Ali the mashir the P.W.4, who produced mashirnama of place of vardat Exh.l2/A, Inquest Report as Exh.12/B, mashirnama of injuries on the person of Mst.
' Razul as Exh.12/C. Dr. Badaruddin Shaikh the P.W.5, who conducted post-mortem examination of deceased Niaz Ali and had treated injured Mst. Razul the P.W.2 and Asghar Ali Alvi the Investigating Officer as P.W.6 who produced mashirnama of vardat as Exh.12/A, inquest report of the dead body, as Exh.12/B, Lash Chakas form as Exh.14/A, mashirnama of injuries on the person of Mst. Razul the P.W.2, as Exh.12/C, mashirnama of arrest of the appellant. Exh.14/C, mashirnama of recovery of wooden patti i,e,, the crime weapon as Exh.14/D, and Report of the Chemical Examiner as Exh.14/E.
The prosecution closed its side.
6. Appellant was examined under section 342, Cr.P.C., as Exh.16 and thereafter complainant P.W.1 moved an application under section 540, Cr.P.C., for summoning the H.C. Abdul Majeed to prove the recovery of blood-stained wooden patti. The Trial Court granted the application and H.C. Abdul Majeed was examined as P.W.7 and he produced Exh.14/B. The prosecution again closed its side by statement Exh.19. The appellant once again examined under section 342, Cr.P.C., as Exh.20 and he denied the allegations of the prosecution.
7. I heard Mr. Khalid Iqbal Memon, learned counsel for the appellant and Mr. Inayatullah Morio, learned counsel for the State.
' The points for determination are:--
(1) Whether deceased Niaz Ali had died due to unnatural death on the given date, time and place?
(2) Whether Mst. Razul P.W.2 had received injuries on the given date, time and place?
(3) Whether Nabban Shaikh is responsible for having committed the murder of deceased Niaz Ali and causing injuries to Mst. Razul as alleged in the prosecution case?
(4) What offence, if any, has been committed?
8. Since points Nos.1 and 2 are connected with each other, therefore, are discussed together. Dr. Badaruddin the P.W.5 on 24-9-1990 conducted the postmortem examination on the dead body of deceased Niaz Ali and examined injured P.W. Mst. Razul P.W.2. He started the postmortem examination at 3-30 p.m. And completed at 4-30 p.m., on the same date. On external examination, he found the following injuries on the dead body of Niaz
(1) Scalp of scale lacerated.
(2) Scale fractured membranes lacerated.
(3) Brane lacerated.
(4) Vertebra and spinal cord are healthy.
(5) All the viscera of thoraz and abdominal cavity are healthy.
(6) Blood vessel are raptured at site of injury.
9. According to P.W.5 the injuries Nos.1 and 2 were sufficient to cause death. He also opined that the injuries were caused by hard and blunt substance. On the same date viz. 24-9-1990 at 3-30 p.m. He also examined injured Mst. Razul the P.W.2 and found the following injuries on her body:--
(1) On examination No,1: Laccerated wound of 3 and half c.m. In to half c.m. On left side of forehead skin deep.
(2) Laccerated wound tea shape skin deep 9. c.m. In to 1 c.m. On left tempo occipital region of skull.
(3) Laccerated wound 3 c.m. In to Half c.m. Skin deep on left fore-arm posterior.
(4) Swelling 8 c.m. In to 5 c.m. On left lower leg anterioly.
' According to P.W.5 all injuries were simple in nature and were caused by hard blunt substance.
10. Dr. Badruddin the P.W.5 was not cross-examined and his evidence has not been questioned by anyone. The findings on the points Nos.1 and 2 are, therefore, in affirmative.
11. While discussing the point No,3 the important ocular testimony is that of Safar the P.W.1, Eddan the P.W. 3 and injured Mst. Razul the P.W.2 who is also wife of the appellant. In support of their testimony, the prosecution also relied upon the recovery of blood-stained wooden patti and examined mashires H.C. Abdul Majeed P.W.7. The testimony of complainant Safar the P.W.1 the father of the deceased and the testimony of Eddan the P.W.3, the cousin of the deceased is to be discussed together. A perusal of their testimonies shows that there are material contradictions in their statements and their versions are inconsistent to each other. As to making the programme for going to the house of the appellant Safar the P.W.1 stated that the programmes to go to Larkana was decided at the Otaq of Eddan the P.W.3 at about sun set time of the night before incident and Eddan P.W.3 had come to Otaq for that purpose whereas Eddan the P.W.3 has stated that the programme to go to Larkana was made at "Somhiani" time and that it was in the house of Safar the P.W.1. Safar the P.W.1 had stated in the cross-examination that from the bus stand Larkana they went to the house of the appellant on foot while Eddan P.W.3 had stated that they had gone in a Rickshw. Safar the P.W.1 has stated in the cross-examination that when they entered into the house of the appellant, his wife Mst. Razul the P.W.2 was sweeping the house whereas Eddan the P.W.3 stated that she was washing the utensils. Safar the P.W.1 stated in the cross-examination that at the time of incident only four persons i,e,, he himself, Eddan the P.W.3, the appellant and the deceased Niaz Ali were present and there was no other person in the house. Eddan the P.W.3 stated that besides these four persons there were 2/3 children in the house. Safar the P.W.1 stated that their cries attracted no one whereas Eddan the P.W.3 stated that 2/3 persons had come to the place of vardat in response to their cries. Safar stated in the cross-examination that he removed Mst. Razul the P.W.2 to the Hospital in a donkey cart whereas Eddan states that he was taken in a tonga. Safar the P.W.1 deposed that when the police arrived at the vardat, he did not notice any other person of the locality of the vardat but Eddan the P.W.3 stated that 2/3 persons of the Mohallah had come to the vardat while police reached there. Safar the P.W.1 deposed that he had not noticed trail of blood inside the house or from house to the place where the Mst. Razul P.W.2 was lying injured: Eddan P.W.3 had stated that he had seen the blood marks where Mst. Razul the P.W.2 fell down and up to the place where she received injuries.
12. Apart from the contradictions and inconsistent statements of the two witnesses, the statements of Muhammad Safar the P.W.1 and Eddan the P.W.3 also suffers from various other defects. It is admitted by the prosecution that the appellant attacked deceased and Mst. Razul P.W.2 with the wooden patti and not with any deadly weapon, but it is surprising that three persons namely Safar, Eddan and the deceased himself could not resist or stop the appellant from causing from attacking and injuring the two persons; according to the P.W.1 the appellant attacked deceased Niaz Ali for 2 to 3 minutes and thereaft Mst. Razul but in all that period the two witnesses who were the closest relations of deceased Niaz Ali did not take any step to save Niaz Ali and, thereafter, P.W.2. The F.I.R., has been lodged by Safar P.W.1; F.I.R., is delayed by two hours i,e,, the incident took place at 7-30 a.m. And the F.I.R., was lodged on 9-30 a.m. Admittedly the Police Station is about 4 furlongs away from the place of incident and that it was a day time; no explanation has been forwarded by the prosecution for the delay caused into lodging of the F.I.R. The version of Safar the P.W.1 that he had taken Mst. Razul the P.W. 2 to hospital at 8'0 Clock has not been supported by her.
Dr. Badaruddin the P.W.5 stated that Mst. Razul the P.W.2 was produced before him for treatment at 3-30 p.m. And as such the statement of Safar P.W.1 is belied that he had taken her to the hospital in the morning.
13. In view of the above, the very presence of Safar the P.W. 1 and Eddan the P.W. 3 at the place of incident becomes doubtful and cannot be relied upon. Apart from these two eye-witnesses, the most important witness is Mst. Razul the P.W. 2 who is the wife of the appellant. It would be advantageous to reproduce her statement recorded in Court hereunder: "About 4 years back deceased Niaz Ali was murdered. It was about 7-00 a.m. I was present in my house all alone in Allahabad Muhalla Larkana. Deceased Niaz Ali entered in our house. He tried to forcibly commit rape with me. I raised cries, on which people from neighborhood came to the place of vardat. The inflicted injuries to deceased Niaz Ali. Deceased had also inflicted injuries to me. I then went unconscious. I do not know furthermore. I regained my consciousness in the Hospital after 2 days. Police had not recorded my statement. Police had obtained my R.T.I. My statement was not recorded before Mukhtiarkar Larkana. I produce 164, Cr.P.C., statement as Exh.10/A, I cannot say whether it bears my R.T.I. Or not. The contents of 164, Cr.P.C., statement are not correct as I have not given such statement before Mukhtiarkar." This P.W. Was declared hostile by the prosecution and A.P.P. Was allowed to cross-examine her. The cross-examination is also reproduced hereunder: "My marriage with accused took place about 8/9 years back. Out of this wedlock 4 children are born, two sons and two daughters. My elder son may be aged about 5 years. I do not know the names of persons who had come on my cries to my house. I have not disputed terms with my husband prior to marriage or after the marriage, with him. My husband/accused never suspected about my character in connection with deceased. I cannot say whether accused had purchased bricks from complainant or not. When deceased entered into our house I was washing clothes at hand-pump in our house. The people of Muhallah and deceased had inflicted brick-bat injuries and injuries wooden pattis, to each other. There were 2/3 persons of Muhalla who entered in our house. Deceased Niaz Ali had inflicted injuries to me on my head from the Sotti used for purpose of washing clothes. It is incorrect to suggest that I was produced before Mukhtiarkar Larkana and my statement under section 164, Cr.P.C., was recorded in my presence of accused by Mukhtiarkar Larkana. I see R.T.I. On 164, Cr.P.C., statements and say that same was taken from me in the Hospital by some Sobedar, on white paper. It is incorrect to suggest that at the time of incident accused was present in the house and in my presence he inflicted injuries to deceased Niaz Ali or he also inflicted injuries to me. It is incorrect to suggest that I am not deposing against the accused as he is my husband." The cross-examination by the defence on the P.W.2 is also reproduce as under: "It is a fact that at the time of incident accused was on his job at Tanoor at Pakistan Chowk, Larkana. He used to attend his work early in the morning. Muhalla Allahabad may be 3/4 kilometers away from Pakistan Chowk."
14. Mst. Razul the P.W.2 in her statement before the Court had supported the case of the defence version and not that of the prosecution. She categorically denied of having made any statement under section 164, Cr.P.C., before the Magistrate. She had stated that it was in the hospital that police had obtained her thumb-impression on the white paper. She also denied to having made any statement before the police under section 161, Cr.P.C. Though this witness was the most important and material witness for that prosecution but the prosecution through her cross- examination could not prove its case. In fact no material question has been asked by the prosecution after declaring her hostile. Prosecution did not even produce the Magistrate who had recorded her 164, Cr.P.C., statement and which has been retracted by her in the Court. In the absence of evidence of Magistrate and in view of her retracting statement under section 164, Cr.P.C., the statement under section 164, Cr.P.C., loses its evidentiary value and cannot be relied upon as against the statement made by her before the Court. In the circumstances, the defence version which was placed in the cross-examination to the prosecution witness and supported by the most material witness i,e,, Mst. Razul P.W.2 has to be accepted. Prosecution also failed to produce the tapedar who had inspected the scene of incident and prepared site plan of the place of incident and as such the presence of the eye-witnesses namely P.Ws. Safar and Eddan could not be corroborated.
15. Another thing which is pertinent to note about the presence of the eye-witnesses at the place of incident is that according to prosecution witnesses, 2/3 persons of the vicinity were attracted over their cries but the prosecution did not examine any of the witnesses to that effect and, therefore, an adverse inference can be drawn against the story of the prosecution. It has also been brought on record that the children were also available in the house at the time of vardat but neither they were examined by the police under section 161, Cr.P.C., nor were produced in the Court as witness to support the case of the prosecution. There is no explanation by the prosecution as to why the children have not been examined and produced before the Court.
16. According to the F.I.R., the appellant after causing injuries to Niaz Ali and Mst. Razul ran away alongwith the wooden patti i,e,, crime weapon. Safar the P.W.1 and Eddan the P.W.3 have supported version of F.I.R. In the Court as well. However, Muhammad Ali the P.W.4, mashir of vardat stated before the Court that on the day of incident at 11-00 a.m. He was made mashir; he saw one dead body of a man and one injured woman, lying at the place of vardat; she was unconscious; that police secured one blood-stained wooden patti from the place of vardat and prepared such mashirnama in his presence. The mashirnama which is Exh. No,12/A is silent about the injured woman and also about the bloodstained wooden patti. According to Exh. No,14/D the mashirnama of recovery of the crime weapon i,e, the blood-stained wooden patti was recovered on the pointation of the appellant at Aboo Bakar Graveyard from below a tree which was seized by the police and sealed thereon. There are two versions as to the crime weapon i,e,, blood-stained wooden patti; one that narrated by Muhammad Ali the P.W.4. The mashir of the place of vardat and other is the mashirnama of recovery of the wooden patti that is Exh.14/D, which is supported by the Abdul Majeed the P.W.7 and Asghar Ali Alvi, Inspector/I.O. Of the case. In view of the above recovery has also become doubtful and cannot be relied upon. It is also admitted by the prosecution that blood-stained wooden patti was sent to the chemical analyseron 23-8-1992 i,e,, after a lapse of a period of 1 year 9 months and 8 days. No explanation has been extended by the prosecution for such a delay. The Courts while dealing the similar cases had held that it is unsafe to rely on the opinion of the experts which have been given after unexplained delays. Reliance is placed on the case of Allahando v. The State (1969 SCM R 714) relevant portion at page 720). It is also to be noted that the crime weapon which has been produced in Court was not shown to the three eye- witnesses namely Safar the P.W.1. Eddan P.W.3 and Mst. Razul P.W.2. From the evidence of prosecution witnesses, it appears that there had to be two wooden - patties but the prosecution produced only one and there is no explanation about the other wooden patti. It is also not the case of prosecution that one patti was left behind at the place of incident by the appellant and one patti was taken away by him while running away. All this create a serious doubt about the recovery of the wooden patti.