' JAMALUDDIN H. AHMED, J.--The appellant has been convicted by the Additional Sessions Judge, Karachi on 11-8-1975 for an offence under section 302, P. P. C. For having committed the murder of one Manjra Khan on 13-10.1972 and has been sentenced to life imprisonment and a fine of Rs, 10,000 or in default to undergo 3 years' rigorous imprisonment. He has now appealed against the abovesaid conviction and sentence.
2. The case of the prosecution in short is that on the day of incident, which was in the month of Ramazan, the complainant Mir Dost Khan along with the deceased who was his brother was going to their house situated in the Pathan Colony, Karachi when they met Bashman Khan their uncle's son who also resided in front of their house with his two sons Zardosh Khan and Ali Baz Khan.
Bashaman Khan appeared to be angry and protested with the complainant as to why he allowed Ahmed and Asir Khan to visit his house. Bashaman Khan's son Zardosh Khan was married to a sister of Ahmed who visited the complainant as, he was his relation. But there was a family dispute between Ahmed Khan on one side and Bashaman Khan and his son Zardosh Khan on the other. On the day of incident at about quarter to six p.m. Asir Khan and Ahmed had visited the house of the complainant which had angered Bashaman Khan. However, complainant Mir Dost Khan replied to the protest saying that he could not prevent the visits of Ahmed and Asir Khan as they were also his relatives and that he had nothing to do with the personal dispute of the complainant. Upon this Bashaman Khan abused the complainant. During this time the appellant Zardosh Khan came out from his house holding a knife in his hand with which he attacked Manjra Khan who succumbed to his injuries and died on the spot. The appellant was caught hold of by Mohallah people. According to the First Information Report the incident had been witnessed by Karim Gul, Habibur Rahman and other Mohallah people. The incident had taken place a few minutes before the Iftar time and the complainant proceeded to the S. I. T. B. Police Station, Karachi which was at a distance of two miles where he lodged his report about this murder which was recorded at 6-30 p.m. By S. H.
0. Aijaz Hussain Shah.
3. After recording abovesaid F. I. R. The S. H. O. Proceeded to the place of incident where he found the dead body of the deceased lying in the street in front of his house. He prepared the Mashirnama of the Wardat, secured the blood-stained earth, and after preparing the inquest report sent the dead body for post-mortem examination through Constable Pir Bakhsh. Ghulam Sarwar and Sherzada acted as Mashirs of the Wardat and of the inquest report. He thereafter arrested the appellant who was sitting in the house of Zarkasheen. He prepared the Mashirnama of his arrest and secured his blood-stained shirt and Shalwar in presence of Mashirs Allan Khan and Sherzada Khan. He thereafter recorded the statements of Wasim, Jalal, Taleman, Sherzada, Ghulam Sarwar, Zarkasheen, Syed Ahmed Shah, Mian Muhammad Ishaque, Jalal Khan, Ahmed and Asir Khan. He took the appellant to an Additional City Magistrate, Karachi for recording his judicial confession but he declined to make one. He sent the blood-stained clothes of the deceased and those of the appellant to the Chemical Analyser. This report was to the effect that they were all stained with human blood. The S. H.
0., after getting the sketch of the Wardat prepared, completed the investigation and sent the appellant for trial.
4. At the trial the prosecution examined P. W. 1 Amir Dost Khan, P. W. 4 Taleman, P. W. 5 Syed Ahmed Shah, P. W. 6 Jalal Khan, and P. W. Hussain as eye-witnesses of the incident. However, except complainant Amir Dost Khan, the other four witnesses did not support the prosecution. P. Ws.
Taleman and Syed Ahmed Shah were declared hostile while the other two witnesses Jalal Khan and Hussain were not so declared. P. W. 2 Muhammad Ishaque and P. W. 3 Zarkasheen were examined to corroboi ate the version of the complainant. P. W. Muhammad Ishaque had come out of his house when he heard commotion of the people of Mohallah outside. He had seen the appellant running away and had, according to him, told P. W. Zarkasheen to go and catch hold of him. He had thereafter gone to his house. P. W. Zarkhasheen had then caught hold of the appellant.
He had also seen the appellant running away from the spot and had heard the crowd of the Mohallah people saying that he had murdered Manjra Khan. He caught hold of Zardosh Khan and made him to sit in the Baithak near the door of his house. P. W. 9 Sherzada Khan, the Mashir of the arrest of the appellant was examined and he deposed that the Police had arrested the appellant from the house of Zarkasheen where he had been made to sit and further that the Investigating Officer had secured his shirt and Shalwar which were both blood-stained. P. W. 10 Allan Khan the co-mashir was also examined by the prosecution but he did not support the fact of securing the clothes of the appellant by the Police. He was also declared hostile but he denied the fact that the Police had arrested the appellant from the house of Zarkasheen or that any blood-stained clothes had been secured in his presence. He even said that the mashirnama was not prepared at the spot, but he was shown some clothes at the Police Station. P. W. 13 Asir Khan was examined to prove the motive but he professed ignorance about any ill-feelings between Bashaman Khan and Ahmed. He on the contrary stated that they all being relatives, Ahmed was on visiting terms with Bashaman Khan. He did not know that Bashaman Khan was annoyed with Ahmed at all.
5. The med.Cal evidence was furnished by Dr. Muhammad Umer Khan, who had conducted the post-mortem examination of the dead body on 31-10.1972 as he was the Police Surgeon at Karachi.
On external examination he found in all five injuries which are as follows
(1) Transverse oblique incised wound on left side chest at 4th inter-costal space at the nipple xx cavity deep.
(2) Contused abrasion at three places and nose one at left nostril f" x e' and another at tip of nose x i' and the third at the bridge of the nose 11' X e".
(3) Contusion on left upper lip I' x
(4) Two contusions on chin both sides, each being f"
(5) Contused abrasion en left knee joint 11' x Ir. On internal examination, however, he found "left upper lobe at the base on medial edge was cut 1" and after cutting it, had punctured the left ventricle of the heart through and through 3/4'. The base of upper left lobe was also punctured."
6. In his opinion the cause of death was profuse haemorrhage and shock due to stab wound in the chest. The external injury No, 1 according to him, was sufficient to cause death in the ordinary course of nature. He further gave his opinion that the injuries could have been caused by some sharp-edged pointed weapon like 'Churn?.
7. The case of the accused at the trial was that of denial. He denied that he was found running away from the spot on the day of incident or that Zarkasheen had made him to sit in the Baithak.
He also denied that there happened to be any heated discussion between his father Bashaman Khan and the complainant Amir Dost Khan on account of the visit of Asir Khan and Ahmed Khan or that Bashaman Khan had abused Amir Dost Khan at which time deceased bad intervened, saying that it was lftar time and that they could settle the dispute after breaking the fast. He denied that his father Bashaman Khan informed him about the incident and he therefore came out with a knife and stabbed the deceased Manjra Khan. No blood-stained clothes were secured from him nor was he arrested from the house of Zarkasheen. He denied that any eye-witness had deposed against him except complainant Amir Dost Khan and explained the same by saying :- "The deceased Manjra Khan and complainant Mir Dost were having tussel in-between themselves, which was going on for the last three months from the date of incident, over the wife of deceased Manjra Khan. The wife of Manjra Khan had love affairs with one Noshi, who was related to me as the daughter of maternal uncle of Mir Dist. This girl after the death of Manjra Khan was given to Noshi in marriage. I am innocent and have been falsely implicated in this case."
' He did not examine any witness in his defence.
8. At the outset it may be stated that the parties are related to each other which fact has not been denied by any. The two witnesses mentioned in the first information report as the eye-witnesses, i,e, Karim Gul and Habibur Rehman were not examined by the prosecution. The name of the four alleged eye-witnesses, i,e, Taleman, Syed Ahmed Shah, Jalal Khan and Hussain were not disclosed in the first information report, although a general statement to the effect that people of the Mohallah had witnessed the incident, was made. But even these four witnesses examined for the purpose of proving the fact that they had actually seen the appellant causing fatal injuries to the deceased have not deposed to that effect at all. Indeed two of them, i,e, Taleman and Syed Ahmed Shah were declared hostile. The trial Court in its long and elaborate discussion in the impugned judgment has not been able to rely on the evidence of these four witnesses but had to base the conviction of the appellant on its own impression formed from the general circumstances of the case as a whole. The fatal injury according to the medical evidence is only one which was in the chest. That is in conformity with the evidence of the complainant in Court as well as what he has stated in the F. I. R. Significantly weapon of offence was not secured in this case, although it is said that the appellant was caught immediately after the incident. About the securing of the bloodstained clothes from the person of the accused at the time of his arrest, the two Mashirs Sherzada Khan and Allan Khan were examined by the prosecution but they both contradicted each other inasmuch as Allan Khan denied that he had witnessed any such arrest and securing of blood-stained clothes. Even the P. W. Asir Khan who was examined for the purpose of corroborating the complainant in so far as the motive of the crime is concerned, did not support the prosecution case. The learned counsel for the appellant contended that in the circumstances of the case there was not enough evidence to support the conviction and sentence of the appellant for the only witness on whose evidence prosecution could rely was the complainant, Amir Dost Khan and he too had by exaggerating his first version, rendered himself unworthy of credit.
9. Mr. Manzoor Hussain learned counsel appearing for the State confronted with this situation chose to rely on the observation of the trial Court in paragraph 8 of the impugned judgment where it was said "Here there is no evidence to indicate that the accused Zardosh came with pre-planned intention to commit murder of Manjra Khan. The circumstances itself indicate that Bashaman Khan and complainant Amir Dost exchanged harsh words when Bashaman Khan disapproved the visit of Ahmed and suddenly the excitement took turn by which Zardosh was influenced away by his old father's insult to act under the impulse and commit this sort of murder, which was certainly human weakness."
' Although the trial Court considered this reason to be a ground for giving lesser sentence instead of capital punishment the learned counsel for the State was of the view that upon this reasoning the offence would fall under section 304(11), P. P. C. And not under section 302, P. P. C. In this context he also submitted that the case being of October 1972, from which time the appellant has continuously remained in custody, this circumstance might be kept in view for awarding him a lesser sentence uhder section 304(11), P. P. C.
10. In view of the circumstances stated above the real question for consideration appears to be not with regard to the sections of the Penal Code which would be applicable to the act committed by the appellant but whether there is enough reliable evidence on record to connect the appellant with the commission of any offence. As it appears the prosecution has only one witness, i,e, the complainant Amir Bost Khan to rely upon as an eye-witness of the murder. The credibility of this witness has been vehemently attacked by the learned counsel of the appellant and his submission deserves due consideration. It goes without saying that this witness has exaggerated the story that he gave in the First Information Report. In his deposition he stated that he and his deceased brother continued to stand in front of their house when Bashaman Khan went to his own house.
However, he heard the talk of Bashaman Khan with his own son while standing outside the house.
He heard Bashaman Khan telling his son to go and kill both the complainant and his brother. It was thereafter that the appellant came out of the house holding a `Churri' under his shirt. This is obvious improvement over what had been stated to the po ice in the First Information Report where according to him the appellant came out with a 'Churn' while Bashaman Khan was still abusing him. Similarly in his deposition in the Court of Session he stated that after causing the injuries to the deceased the appellant had given the knife to his father Bashaman Khan who had taken away the same himself. This was his case neither in the First Information Report nor in the Committal Court. In fact if he had disclosed this fact to the police it could not have been difficult for the Investigating Officer to secure the crime weapon. He has also avoided to mention the name of Zarkasheen as being a person who caught the appellant. The two witnesses Karim Gul and Habibur Rehman who were named as eye-witnesses of the occurrence in the First Information Report were not examined even by the Investigating Officer and the reason given by him was that they were not traceable.
The complainant himself avoided to take their names in Court but has given the addresses of both the witnesses as being residents of the same locality. Karim Gul is only at a distance of two houses from the house of the complainant while Habibur Rehman is residing at the back side of the house.
These and other aspects of the complainant's evidence create doubt about the veracity of his statement. The only piece of' evidence which could if at all be used for the purposes of corroborating his statement and also connecting the appellant with the commission of the crime was that of securing the blood-stained clothes from the person of the appellant. Unfortunately the evidence of the two Mashirs on this point is conflicting with each other. Besides this the complainant in his own statement had said that "the deceased got the accused on the spot but by the time he caught the accused deceased fell down and died as a result of the injuries". The existence of the blood stains on the clothes of the appellant, if at all, is thus explained. Witness Zarkasheen also did not mark any blood stains.
11. In this case, therefore, there being no eye-witnesses in support of the case of the prosecution except the complainant whose evidence due to the inconsistencies and exaggerations as pointed out above being unsafe for reliance and there being no corroborative evidence of an unimpeachabl character, the appellant is entitled to the benefit of doubt for the prosecutio has failed to prove its case beyond reasonable doubt. This appeal is, therefore, allowed and the appellant is in the result acquitted. He is to be set free forthwith unless required in some other case.