' Appellant Muhammad Naeem was sent up in the Court of 1st Additional Sessions Judge, Karachi to stand his trial for the offence under section 302, P. P. C. For committing murder of one Ibrahim.
On the conclusion of the trial, however, the learned trial Judge, found the appellant guilty of the offence under section 326, P. P. C. And not of the offence under section 302, P. P. C. And convicted him and sentenced him to R. I. For 10 years and a fine of Rs, 2,000 or, in default, further R. I. For 6 months, and acquitted him on the charge under section 302, P. P. C. He appealed against his conviction and sentence. This Court admitted the appeal and, simultaneously, issued notice to the appellant against his acquittal on the charge under section 302, P. P. C. In exercise of its suo mote revisional powers. By this judgment, I propose to dispose of both, the appeal as well as the Revision.
' The prosecution case was that on 24-9-1973, at 8-45 p.m. A. S. I. Muhammad Abbas received telephonic intimation from Dr. Aliah Bachayo Memon of Civil Hospital, Karachi that one person by the name of Muhammad Ibrahim had been admitted in the hospital with injuries and that some officer should be sent for investigation. The A. S. I. Accordingly went to the hospital where he recorded the statement of complainant Aliah Bux (Exh. 13) and sent it through the Constable Sabir Hussain Shah to the Napier Police Station for registering it as F. I. R. In 154 Book. It reads as under :- "1 reside at the above address and am driver of Bus No, KAZ 9090 Route No, 19-D and Muhammad Ibrahim is Conductor in the said bus. At about 7 p.m. I after taking my vehicle had started from Gizri and at about 8 p.m. Reached Madina Market Bus Stop when quarrel started between Conductor Ibrahim and a person on demanding fare. On commotion I got down from my seat and went back side in the bus and enquired as to what was the matter. Ibrahim told that the said person was not giving fare. I remonstrated but he did not listen. Thereafter Ibrahim told that if he was not going to pay the fare then he should get down from the bus. Upon this, the said person said 'Wait, I am going to pay now' and he started abusing. Ibrahim asked as to why he was abusing whereupon (accused) got infuriated and took out knife and attacked Ibrahim which hit (Ibrahim's) chest, belly and leg and it started bleeding. In the meantime, on hearing commotion, Zard Ali, Arif Khan and Mistri Akbar arrived there and intervened and caught hold of the (accused) and also snatched knife. Mistri Akbar has also received injury while intervening. Since it was bleeding profusely, I and another person Ghulam Sarwar brought (Ibrahim) to the Civil Hospital for treatment, while those two persons Arif and Zard Ali have caught hold of the accused at the spot. Mistri had also come alongwith me. This much' is my statement. My complaint against the accused is for killing my companion Ibrahim. The report may be written and legal action be taken."
' The A. S. I. Thereafter recorded statement of the witnesses and went to the vardat where P. Ws.
Zard Ali and Arif Khan handed the assailant to the S. H.
0. Who arrested him, secured the knife under mashirnarna dated 24-9-1973 (Exh. 22), prepared mashirnama of vardat (Exh. 21), re..Orded statements of more witnesses and, on the next day in the morning, sent the assailant to the hospital where he was examined by Dr. Moosa Ibrahim at 12-45 a.m. Whose certificate (Exh. 37) was produced by P. W.
14. Shabbir Hassan, as Dr. Moosa Ibrahim was stated to have left the country. Injured Ibrahim died in hospital on 25-9-1973 at 3-15 a.m. The autopsy was conducted by Dr. M. S. Farooqui, Police Surgeon, and according to the report the deceased had received the following two injuries :- "(1) Incised wound epigestric region verticle 2" x $," into cavity deep.
(2) Incised wound right iliac fossa x x cavity deep intestines were coming out. Nlorgis clean cut shape spindle shaped angles acute."
' After completing the necessary investigation, the appellant was challaned in the Court of A. C. M.
No, XIV, Karachi who committed him to the Court of 1st Additional Sessions Judge to stand his trial.
' At the trial, prosecution sought to rely on the evidence of 8 witnesses, out of whom Ghulam Sarwar, Muhammad Rawal, Aliah Bux, Zard Ali, Muhammad Hussain, were examined at the trial, while the depositions of the remaining three, namely, Arif Khan, Haji Saeed Sultan and Sultan Akbar was brought on record under section 33 of the Evidence Act, as according to the Process-Server Nauroz Khan, Head Constable, these witnesses could not be served in spite of the diligent search.
Out of the witnesses examined at the trial, P. W. Ghulam Sarwar stated in his evidence that he heard commotion in the bus and then saw Ibrahim injured and the assailant (wrongly referred to as the accused by the trial Court) running away from the place of occurrence. He, however, stated further in his examination-in-chief that the appellant present in Court was not the same person and that the name of the appellant Naeem was disclosed to him by A. S. I. 3 or 4 days after the incident. He was declared hostile and was cross-examined by the prosecution who suggested to him that the appellant was the same man whom he had seen stabbing the deceased and that he was deposing falsely in the trial Court, which suggestion the witness promptly denied. Perusal of his lower Court statement would however, show that therein also he had stated that "the accused who was present in Court was not the assailant whom he had seen at the time of incident." The next witness Muhammad Rawal in his evidence stated that he heard commotion in the bus and saw conductor Ibrahim getting down alongwith other persons raising cries that some one had given him knife blow, and that he had seen the person running away from the place of occurrence but he could not identify him. He, however, stated in his cross-examination that he himself had not seen the assailant being caught and handed over to the Police. P. W. Zard Ali in his evidence stated that while he was sitting on a cot in front of Azam Khan Hotel, he saw a person running and being followed by people who were saying that he had stabbed the bus conductor and so he also started following them alongwith Arif Khan and caught hold of that running man and snatched the churry from his hand and then sent a man to the Police Station from where Police came and took the assailant and secured the churry from him (Zard Ali). He however stated further that the appellant was not the same person whom he had caught. He was declared hostile and was cross-examined and it was suggested to him that he was deposing falsely at the instance of the relations of the accused which suggestion he promptly denied and also denied the suggestion that the appellant in Court was the same person whom he had caught. P. W. Muhammad Amin in his evidence stated that he heard the commotion and saw one person running with the knife toward the tonga stand and heard that the same man was apprehended by the people. At the end of his examination-in- chief, however, he stated that he had not seen the man who was running away with the knife. P. W. Arif Khan, whose deposition in the lower Court was brought on record under section 33 of the Evidence Act, had stated before the lower Court that he was sitting at the Lea Market when he saw one man running and being followed by people who were shouting that the man had stabbed some one. He and Zard Ali then caught him and handed him over to the Police at the Napier Police Station who arrested the assailant and prepared mashirnama of seizure of accused and the knife which he (the witness) had produced. When, however, the appellant was pointed out to him in Court by the prosecutor, P. W. Arif Khan categorically stated that the appellant was not the person whom he had caught. At this, he was also declared hostile and it was suggested to him in cross-examination that the accused in Court was the same man who was caught hold by him and others but he denied the suggestion, and further denied that he was deposing falsely at the instance of appellant Muhammad Naeem. The next witness Haji Syed Sultan stated in his deposition in the lower Court that he saw one injured falling from the bus and another man having knife in his hand running away after getting down from the bus and being, caught by some persons but he did not see in Court the person who had the knife and was running. In other words, he stated that the appellant was not the person whom he had seen running away with a knife in his hand. This witness also was declared hostile and it was suggested to him that he had deposed in favour of the accused as he had got mixed up with the accused party, which suggestion he promptly denied. P. W. Sultan Akbar in his deposition before the lower. Court had stated that he saw two persons picking up quarrel with bus conductor inside the bus. He also entered the bus with the intention to separate them and saw that one person took out a knife and stabbed the bus conductor and on his intervention to separate them he also received injuries. 1 he injured conductor and the person who stabbed him then got down from the bus and continued fighting during which the bus conductor Ibrahim received knife blow and the assailant started running towards tonga stand from where he and others caught him and brought him to Police Station where he was handed over to Police and knife was recovered from the accused by Police in his presence. He, however, stated that the appellant present in Court was not the same person. He also was declared hostile and was cross-examined wherein it was suggested to him that memo. Of inspection was prepared in his presence but he denied the suggestion and stated that be was merely made to put his L. T. I. His further examination by the prosecutor would show that prosecution itself doubted the identity of this witness and for that purpose, required him to produce the Identity Card. He further denied the suggestion in the cross-examination that the appellant present in Court was the same person or that he bad been won over by the accused. Lastly, there remains the evidence of P. W. Aliah Bux. Since the last line in the evidence of this witness appears to have weighed' strongly with the learned trial Judge for convicting the appellant it will be useful to reproduce his evidence in extenso : "At the time of incident I was plying Bus No, KAZ 9090 on Route No, 19-D. The deceased Muhammad Ibrahim was the conductor of the said bus. About 3 years back it was about 8 'p.m. I was taking my bus from Gizri to Saeedabad. I stopped the bus at the bus stand of Ma dina Market. I heard commotion in the bus. I got down and I learnt that the conductor was stabbed with the knife. I found my conductor Md. Ibrahim fallen on the ground injured. I took him in my bus to the Civil Hospital. Police recorded my statement under section 154, Cr. P. C. Md. Ibrahim died in the hospital on the same night. I see Exh. 13, it is signed by me. The contents of Exh. 13 have been read over to me which are not correct. I am illiterate and the statement was not read over to me by the police.
My 164 statement was recorded by the Magistrate. I produce it as Exh.
16. It bears my signature. 164 statement read over to me in this Court was recorded by the Magistrate and I had said so whatever has been written in the 164 statement. The accused shown to me in the Court is the same person who had stabbed blows to the victim.
' X to Mr. Wahid Abid, Advocate for the accused: ' I had not seen the accused in the bus. I had not seen accused Naeem present in the Court stabbing the victim Md. Ibrahim or Akbar. I had not witnessed the incident at all. I had given my 164 statement before the Magistrate at the instance of Police. I do not know P. Ws. Zard Ali and Arif.
Akbar, Sattar and 2 other persons were along with me on board the bus, when we left for Civil Hospital. Victim was in the position to speak and narrated to me that the quarrel took place over the non-payment of fare. I was in the hospital up to 10 p.m. I do not know when police came in the hospital but the police reached at the hospital at 10 p.m. Police recorded the statements of other persons who were with me also. After 10. p.m. I took my bus to the Garrage and leaving the bus then I went to the Police Station. Police also recorded my statements in the Police Station. Police recorded. My statement in the hospital as well as in the Police Station. And Police thereafter, did not take me to any place Police did not call me afterwards."
' The defence of the appellant at the trial was one of denial and false implication on account of enmity with one A. S. I. Inayatullah and he stated as follows :- "The A. S. I. Inayatullah Shah was posted at Napier Police Station. His 'village is near to my village in District Campbellpur. Inayatullah belongs to a family of Pirs. My ancestors were Murids of his ancestors. The differences arose as we discontinued the relationship of Muridi with them.
Inayatullah A. S. I. s; as pressing me to accept biat at his hands to which I refused. Thus he got me falsely implicated in this case. I was called from my house by the police at 10 or 10-30 p.m. Police registered this false case against me."
' The trial Court formed the view that, although the witness had been won over, their evidence was reliable and, thus, relying on their evidence, particularly that of complainant Aliah Bux who had stated in the last line of his examination-in-chief that the accused shown to him in Court was the same who had stabbed the victim, and on the circumstantial evidence of recovery of the knife and apprehension of the accused, he held that these were sufficient to connect the appellant with the crime. He, however, conceded that this was not a case of intentional murder as the accused bad intention only to cause grievous injuries and, accordingly, acquitted the appellant of the charge under section 302, P. P.: C. And convicted him for the offence under section 326, P. P. C. By altering the charge and sentenced him as stated above.
' The question for consideration is whether the appellant has been rightly convicted by the trial Court of the offence under section 326, P. P. C.
' Mr. Manzoor Hussain, Bar-at-Law, learned counsel for the State, conceded, at the outset, that as the prosecution witnesses had not supported the prosecution case against the appellant on each piece of evidence relied upon by the prosecution, he did not support the conviction and the appellant was entitled to acquittal.
' The prosecution case against the appellant rested on the oral testimony of 8 witnesses who were said to have seen the appellant running away .With the knife in his hand and being caught and handed over to the police, the arrest of the appellant from the vardat and the alleged recovery of the knife from him. As to the testimony of the witnesses, the four examined at the trial, namely, P.
Ws. Ghulam Sarwar, Muhammad Rawal, Zard Ali and Muhammad Hassan did not support the prosecution case against the appellant as all of them consistently stated in Court that the appellant was not the person who was seen by them running away with the knife and being caught by the public and handed over to the police. They were declared hostile and the trial Court treated this crucial part of their evidence as an obliging statement, and used their evidence against the appellant. Perusal of their statements before the lower Court would, however, show that even therein they had stated to the same effect and did not implicate the appellant. That being so, there existed no justification for declaring them hostile and treating their statement in favour of the appellant as an obliging statement. It may be pointed out here that even P. W. Sultan Ali, who had received injuries while intervening in the fight, did not implicate the appellant in both the Courts and nothing, excepting a bald suggestion, was brought on the record to show that he was either hostile to the deceased or connected with the appellant to depose falsely in favour of the appellant. Regarding the three witnesses, namely, P. Ws. Arif Khan, Haji Saced Sultan and Sultan Akbar whose statements in the committal Court were brought on record as evidence under section 33 of the Evidence Act, perusal of their statements would show that they also did not support the prosecution as each of them stated therein that the appellant was not the person who was apprehended at the vardat and handed over to the police. That being so, the evidence of the witnesses, instead of supporting, disproved the prosecution case in so far as the appellant was concerned and the learned trial Judge could not, therefore, have legitimately used their .4 evidence against the appellant for his conviction. As to the remaining witness Aliah Bux, the learned trial Judge appears to have treated him to be an eye-witness and heavily relied upon the last line of his examination in-chief wherein he stated "the accused was the same person who bad stabbed blows to the victim".
' Mr. Muhammad Hayat Junejo, learned counsel for the appellant, contended that the above one line in the statement of the witness was, in the circumstances of this case, not admissible in evidence of an eye-witness, in view of section 60 of the Evidence Act, and, therefore, it could not be relied upon by the learned trial Judge in the manner that he did. I see force in the contention. The relevant part of section 60 of the Evidence Act reads as under :- "Oral evidence must, in all cases, whatever, be direct; that is to say if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; ' if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it ; ' if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner ; .................... 19 Admittedly, P. W. Aliah Bux, according to his own evidence, had neither seen the incident nor did he claim to have heard about it from any other person. His exact words are "I had not seen the accused in the bus. I had not seen accused Naeem present in the Court stabbing the victim Muhammad Ibrahim or Akbar. I had not witnessed the incident at all. I had given my 164 statement before the Magistrate at the instance o police". In this view of the matter, he, indeed, could not be treated as an eye-witness, and his evidence was no better than that of tither witnesses, and did not advance the prosecution case any further and this was also the submission of the learned counsel for the State.
' There remains the circumstantial evidence of apprehension and arrest of the appellant and recovery of knife from him by S. H.
0. Muhammad Abbas, under mashirnama Exh.
22. In this connection, the learned trial Judge has relied on the evidence of Investigating Officer, Muhammad Abbas who in his evidence stated that when he went to the vardat the appellant was handed over to him and he secured the blood-stained knife from his hand. The deposition of the mashir Zard Ali would, however, show that the knife had been snatched by him from the assailant and was produced by him before the Investigating Officer. The mashirnama of the recovery of knife (Exh. 22) also supports Zard Ali in this respect. The evidence of the Investigating Officer that he had himself recovered the knife from the hand of the assailant is, therefore, not true and cannot be believed. Then, according to the mashirnama, appellant was produced before the S. H. O. By P. W.
Zard AIL P. W. Zard Ali, however, categorically stated in his evidence that appellant was not the same person whom he had apprehended and produced before the Police, and to the same effect was the evidence of P. W. Sultan Akbar who stated in his examination-in-chief that appellant present in Court was not the same person. In these circumstances, it was rightly contended by Mr. Muhammad Hayat Junejo, learned counsel for the appellant, that the evidence of the S. H.
0. Having been contradicted on this material aspect of the case, her was not a trustworthy witness and, therefore, his evidence could not be implicitly relied upon in other respects also, especially when he stood contradicted by the other witnesses present at the scene of offence at the time of the incident who consistently stated that the appellant was not the person who was apprehended at the vardat and handed over to the police. Yet another reason for which, the Investigating Officer could not be considered to be a reliable witness is that, although the mashirnama of seizure (Exh.
22 mentions securing of Rs, 20 and an Eage pen from the appellant, it make' no mention either of any injury on the person of the appellant or of securing of blood-stained clothes from him. On the other hand, appellant is shown to have on his person as many as 12 injuries of which two were incised injuries, caused by a sharp-cutting weapon, which must have bled and the appellant would surely be having blood-stained clothes and the Police Officer could not have failed to notice them. The Investigating Office has tried to explain in his evidence that the clothes of the appellant were blood-stained but he did not secure them, which, however, seems difficult to believe as no S. H.
0. Would afford to ignore such important piece of corroborative evidence. Then, none of the witnesses has deposed to the appellant receiving injuries at any stage, whereas the appellant is shown to have as many as 12 injuries on him. In the absence of any explanation, therefore, the plea of the appellant that Police had caused him the injuries appears to be plausible and, as such, the evidence of Investigating Officer with regard to the arrest of the appellant is also open to doubt and could not be implicitly relied upon, particularly when as many as seven prosecution witnesses, out of whom one was an injured witness, categorically stated in their evidence that the appellant was not the person who was apprehended and handed over to the Police, clearly meaning thereby that he was not the person arrested by the Police.
Even if it were to be assumed that the appellant was handed over to the Police and was arrested, this circumstance by itself would not prove charge of murder or of any other offence but it could only be used as corroborating circumstance and only one link in the chain on the basis of which no conviction could be safely made due to the chain being incomplete, as none of the witnesses has said that they either saw the appellant causing injuries to the deceased or running away with the knife. It is well established that when conviction is sought to be based on circumstantial evidence, the circumstances themselves have to be established beyond doubt and the chain has to be complete without any link missing and the evidence must be shown to be inconsistent with any other hypothesis pointing to the innocence of the accused. There is also no explanation as to how the C appellant sustained as many as 12 injuries out of which two were suspected fracture of nasal bone and suspected fracture of jaw bones, and two were incised, and, in the circumstances, one also does not know as to whether h was himself the victim of sustained assault, and in what circumstances the offence was committed, as the whole truth has not come on .. Record from the mouth of any witness. What is more, the solitary circumstance of the appellant being apprehended on the spot and handed over and arrested by the Police was not even put to the appellant in his statement under section 342, Cr. P. C. Which indeed was a very serious infirmity as this requirement could not be dispensed with, as held in the case reported a Rahim Bux v. Crown (1).
For the aforesaid reasons, and in view of the statement made by the learned counsel for the State, I hold that the prosecution has failed to prove its case against the appellant, and allow the appeal and set aside the conviction and sentence of the appellant and acquit him and order that he be released forthwith, unless required in any other case. In view .Of my above finding, the Suo Motu Revision No, 92 of 1977 becomes infructuous and is dismissed accordingly. {{FOOT NOTE}}
(1) PLD 1952 FC 1 {{FOOT NOTE}}