MUHAMMAD BUX vs ABDUL AZIZ & others

Rahmat Hussain Jafferi, J.--The appellant has filed the present appeal with leave of the Court to challenge the judgment dated 30.05.2006, passed by the learned High Court of Sindh, Circuit Court, Hyderabad, by which the learned High Court acquitted Respondents Nos, 1 to 3 (hereinafter referred to as 'the respondents'), who were convicted by the learned Additional Sessions Judge, Shandadpur for offence punishable under Section 302 read with 34, PPC and sentenced each of them to suffer imprisonment for life with benefit of Section 382B, Cr.P.C.

2. The allegation of the prosecution is that on 09.12.1999, the complainant Muhammad Bux (PW.1) along with his brother Ali Gul (PW.2) and uncle Muharram Ali (PW.3) was sitting on a Bench outside the shop of his brother Mir Muhammad, deceased. At about 1230 noon, the respondents armed with guns came there. After issuing challenge the respondent Abdul Aziz fired from this gun, which hit the deceased on his right side of chest, thereafter the other two respondents viz. Ghulam Mustafa and Muhammad Rafique fired, from their respective guns which also hit the deceased on his back.

The respondent Abdul Aziz disclosed that they took the revenge of the murder of grandfather of Respondent No, 3 committed by the father of the deceased Mir Muhammad.

3. The police collected three pieces of evidence viz. ocular testimony, motive and recovery of guns from the possession of the respondents and crime empty from the place of incident but the FSL report was in negative. At the trial, the prosecution examined 9 witnesses, including the complainant and both the eye-witnesses. The learned Additional Sessions Judge relying upon the ocular testimony convicted and sentenced the respondents, as mentioned above, vide judgment dated 10.05.2004, which was set aside by the learned High Court through its judgment dated 30.05.2006, which is impugned in this appeal.

4. We have heard the learned counsel for the appellant, the respondents, the State and have perused the record of the case with their assistance. Learned counsel for 'the appellant has stated that the ocular testimony of three witnesses is sufficient to convict the respondents but the learned High Court has misread the said evidence; that the motive has been proved coupled with medical evidence which gives sufficient corroboration to the ocular testimony. Conversely, learned counsel for the respondents has stated that PWs were not present at the scene of incident, which fact has been proved from the statement of Investigation Officer and Mashir of the place of incident; that the witnesses improved their statements from their statements record under Section 164, Cr.P.C. on material aspects of the case, therefore, their evidence is unreliable and the learned High Court has rightly appreciated the evidence. He has argued that the motive has not been proved as grandfather of Respondent No, 3 was murdered about 40 years back; that during the said period no untoward incident took place between the parties but on the contrary their relations were cordial so much so that the complainant got insurance policy from the respondent Abdul Aziz. The learned State counsel has supported the impugned judgment and has adopted the arguments of learned counsel for the respondents.

5. Having heard learned counsel for the parties and gone through the material made available before us, we find that the incident was alleged to have witnessed by the complainant and two eye-witnesses. Admittedly, the statements of both the eye-witnesses were recorded after 3/4 days of the incident. The case of the prosecution is that both the eye-witnesses were present with the dead body when the complainant went to lodge the report and brought the police. The SHO, in the cross-examination, has admitted that when he reached the place of incident, the witnesses were not available, therefore, their statements were not recorded. Even the Mashir of the place of incident viz. Abdul Rashid, who is cousin of the complainant, has also deposed that the witnesses did not reach the place of incident. It appears therefrom that both the aye-witnesses were not present at the scene of incident. Furthermore, they have made improvements in their statements recorded in the Court from their statements recorded by the learned Magistrate under Section 164, Cr.PC. The improvements are in respect of their sitting on the Bench at the time of incident their sitting with the dead body when the complainant went to police station to lodge the report and the first fire made by Abdul Aziz on the deceased. It is the case of the prosecution that the complainant and both the eye-witnesses came together from their village but PW.2 Ali Gul stated that he and his brother Muhammad Bux (PW.1) came together but their uncle Muharram Ali (PW.3) came separately.

6. As regards the statement of the complainant, the same is unreliable for the reason that he disclosed the motive but the same has not been proved in accordance with law as .he himself admitted that grandfather of Respondent No, 3 was murdered 40 years back and thereafter the respondent Abdul Aziz got him insured about 6/7 years back from the recording of his statement. In this case motive is an important fact, which has not only been alleged in the FIR but the evidence has been led. The said motive has not been relied upon by the trial Court and the High Court as the prosecution failed to prove the same. In such a situation, the Court should be very careful in accepting prosecution story and the evidence of such witnesses who not only gave evidence on motive and incident should be accepted with great caution. It has been held in the case of 'Muhammad Sadiq v. Muhammad Sarwar (1979 SCM R 214)" that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of "Hakim Ali v. The State (1971 SCM R 432)" it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defense. In the case of "Ameenullah v. State (PLJ 1976 SC 283)" it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story.

7. Keeping in view the above principle, we have examined the evidence of the complainant and found that his presence at the scene of incident has not been established from the other evidence available on record except his own version which in the present circumstances of the case is not enough to be relied upon. The learned High Court has examined the entire evidence and rightly concluded that the witnesses were not present and the case was not free from doubt. We do not find any reason to disagree with the learned High Court.

8. Consequently, the appeal has no merits and the same is dismissed.