MUHAMMAD ASHRAF Versus THE STATE

1. This appeal is directed against the judgment dated 29‑10‑2002 passed by Additional Sessions Judge, Pishin, whereby the appellants were convicted under section 3‑08, P.P,C. and sentenced to suffer ten years' R.I. and each of them to pay Rs.70,000 as Diyat to the heirs of deceased Abdullah.

2. Briefly stating the facts of the case are that on 5‑11‑2000 on the report of P.W.I Muhammad Younas F,I.R. No.56 of 2000 under section 147/149/302, P.P.C. was registered at Levies Headquarter Pishin, stating that on 4‑11‑2000 at about 5‑00 p.m. Muhammad Ashraf, Faisal, Daman, Goji and son of Din Muhammad attacked Abdullah at his house and caused him serious injuries by means of knife, who was shifted to Civil Hospital, Pishin wherefrom he was taken to Quetta but Abdullah could not survive the injuries.

3. After registration of the F.I.R. P.W.9 Maqbool Anwar, who was posted as Naib‑Tehsildar, took the investigation in his hand and submitted the challan against accused/appellants and acquitted accused Abdul Hakeem. Accused were put to trial before Additional Sessions Judge, Pishin.

4. On the stated allegations formal charge under sections 302/147/ 149/109, P.P.C. was read over to the accused/appellants as well as to the acquitted accused Abdul Hakeem to which they pleaded, not guilty. Thereafter prosecution examined as many as nine witnesses to establish the charge.

5. P.W.1 Muhammad Younas lodged report Exh.P/1.

6. P.W.2 Hameed Ullah claiming to be the eye‑witness of the incident gave the ocular account of the incident.

7. P. W.3 Asadullah stated that deceased Abdullah informed him that he was injured by accused Ashraf and Abdul Rehman.

8. P. W.4 Syed Muhammad Hashim was witness to the seizure memos. Exh.P/4 with regard to taking into possession the blood‑stained clothes of deceased, he also singed Exh.P/4‑A, the memo. of examination of dead body, Exh.P/4‑B, the inquest report Exh.P/4‑C, the receipt of handing over of the dead body to his legal heirs.

9. P.W.5 Syed Muhammad Akram stated that accused Abdul Hakeem instructed four boys to give beating to Abdullah till his death and after a little while noise was made that Abdullah has been beaten by four boys.

10. P.W.6 Abdul Wahid Durrani, Judicial Magistrate recorded the confessional statement of accused Muhammad Ashraf under section 164, Cr.P.C. which he produced as Exh.P/6‑A.

11. P.W.7 Syed Dost Ali attested the seizure memo. Exh.P/7 with regard to seizure of broken knife recovered from the place of incident on 5‑11‑2000.

12. P.W.8 Dr. Shabir Ahmed Magsi examined the injured at Civil Hospital, Quetta on 4‑11‑2000 and issued death certificate Exh.P/8.

13. P. W.9 Mabool Anwar, Naib‑Tehsildar, Pishin registered the F.I.R. Exh.P/9 and conducted the investigation. Challans Exh.P/9‑C and Exh.P/9‑D were submitted by him.

14. Prosecution rested its case after producing above mentioned nine witnesses, thereafter accused/appellants were examined under section 342, Cr.P.C. wherein they denied the allegations made by prosecution. Accused/appellants also made statement under section 340(2), Cr.P.C. and produced D.W.1 Abdul Bashir and D.W.2 Syed Nehmatullah in their defence. The trial came to an end by means of judgment dated 29‑10‑2002 whereby the accused/appellants were convicted and sentenced in the aforementioned terms, while accused Abdul Hakeem was acquitted of the charge.

15. Mr. W.N. Kohli, the learned counsel for the accused/appellants challenging the conviction and sentence awarded to the accused/appellants contended that the F.I.R. was lodged with unexplained delay of more than 16 hours. The F.I.R. did not reflect presence of the complainant at the scene of occurrence as the same was having no mention of the role played by each of the accused, further the F.I.R. also did not state about presence of eye‑witness i.e. P.W.2 Hameed Ullah making his statement highly doubtful. Similarly the statement of P.W.3 Asadullah with regard to disclosure made by injured does not find any support from the evidence available on the record. Delay in recording of statements of P.W.2 and P. W.3 was also not explained. The recovery of broken knife made on the second day of the incident from a place which was being frequently visited by number of persons could not be believed. Besides the alleged recovered knife was not sent to chemical expert/examiner for detection of human blood so as to connect the same with the commission of offence. The confessional statement was recorded with delay of more than 12 days which affects the voluntariness of the same, besides the same was not in line with the evidence produced by the prosecution. Hence the pieces of evidence relied by the prosecution being tainted with doubt could not be made bases for conviction of accused/appellants.

16. On the other hand Mr. Sultan Mehmood, the learned Assistant A.‑G. assisted by Agha Zahir Shah, Advocate, supported the conviction and sentence awarded to the appellants and argued that the evidence available on the record proved involvement of accused/appellants in the commission of offence. The eye‑witnesses were supported by the dying declaration and their statements were inconsonance with the medical evidence, while the recovery of broken knife from the place of incident further corroborated the statements of the eye‑witnesses which proved the case of prosecution against accused/appellants. The confessional statement made by accused Ashraf stated the reasons for the attack. Hence, prosecution is stated to have established the charge against accused/appellants, while the trial Court has already taken lenient view of the matter by awarding lesser punishment, therefore, there exists no circumstance for interference by this Court in the conviction and sentence awarded to the appellants.

17. The submissions made by the learned counsel for the parties considered, record of the case perused.

18. Defence did not dispute the unnatural death of Abdullah in result of injuries received by him on 4‑11‑2000 at about 5‑00 p.m. Abdullah was first taken to Civil Hospital, Pishin, wherefrom he was shifted to Civil Hospital, Quetta where he reached at 7‑50 p.m. He was examined by P.W.8 Dr. Shabir Ahmed Magsi. The injuries found on the person of Abdullah and the treatment provided to him till his death which occurred at about 9‑15 p.m. were recorded as following:‑‑

(1) "Stab wound on right front chest 1 x 1 c.m., cavity deep.

(2) Stab wound on left back chest 1 x 1 c.m.

19. Due to serious condition of injured, he was referred to Surgical Unit III, Quetta, Injunction haematocele, injunction R/L, blood one point, injunction Adrenaline, Oxygen inhalation, injunction Solicartif, and injunction Decadron, as emergency treatment were given for saving him as all the above mentioned drugs are life saving drugs, but the injured Abdullah succumbed to the injuries on 4‑11‑2000 at about 9‑15 p.m."

20. P.W.1 Muhammad Younas who lodged the report of the incident, in his statement stated that on hearing of the noise that Abdullah is being beaten, he came out whereupon all the accused/appellants sighting him, ran away, Abdullah was in serious condition, who was shifted to Civil Hospital, Pishin and subsequently taken to Quetta where he succumbed to the injuries. The dead body was brought back at 11‑00 p.m. which was kept in the mosque for preparing it for burial. The Teshildar came there to whom the report Exh.P/1 was made. P.W.1 further alleged that he himself saw all the four accused beating deceased Abdullah. In cross‑examination P.W.1 admitted that he has no knowledge that who shifted Abdullah from the place of incident to hospital and whose vehicle was used for the said purpose. It was also admitted by P.W.1 that at the time of incident he was not present.

21. P.W.2 Hameed Ullah came up with plea that on 4‑11‑2000 at about 5‑00 p.m. he saw accused Abdul Hakeem sitting .on a motorcycle parked at some distance from the house of Abdullah. P.W.2 entered the gate of the house of Abdullah where he saw that Faisal and Wali Jan were holding deceased Abdullah, who was stabbed by Daman from behind and Ashraf stabbed him at his chest, after the incident the women and children gathered near Abdullah, where after two of his cousins took away the injured in a Taxi, P.W.2 expressed his lack of knowledge about the place where the injured was shifted. In cross‑examination P.W.2 was confronted with his statement under section 161, Cr.P.C. which was recorded on 8‑11‑2000 i.e. on the 4th day of incident. P.W.2 admitted that in his statement under section 161 Cr. P.C. he stated that the person who was on motorcycle could not be seen by him. Similarly he admitted that in his statement he stated that Abdullah was taken away by the ladies.

22. P.W.3 Asadullah stated that on 4‑11‑2000 at about 5‑00 p.m. opt hearing of the cries/noise of children and ladies he left his shop and reached the place of incident where Abdullah was found lying injured inside the gate of his house, meanwhile Iqbal brought a vehicle wherein the injured was taken to Civil hospital, Pishin, from where he was shifted to Civil Hospital, Quetta. According to P.W.3 on the way the injured informed him that he was stabbed' with knife by accused Muhammad Ashraf and Abdul Rehman alias Daman accompanied by other people. P. W.3 claimed that at the time of said disclosure Iqbal was also present with him. In cross‑examination P.W.3 admitted that his statement under section 161, Cr.P.C. was recorded on the 3rd day of the incident. Further he was confronted with his statement wherein he did not state that Abdullah mentioned presence of other people with accused Ashraf and Abdul Rahim, when they allegedly stabbed him.

23. P.W.1 is paternal uncle of deceased while P.W.2 and P.W.3 are his paternal cousins. All of them reside in the houses adjacent to each other. Their presence at the scene of occurrence was very much possible and it could sound natural but the statements of P.W.1, P.W.2 and P.W.3 itself made their presence, at the time of occurrence or even soon after the incident, highly doubtful if not false. P.W.1, who was also the complainant at the, time of filing of report, did not claim to have witnesses the incident as his report was silent with regard to the role of each or accused. His report neither stated about presence of P. W.2 nor P. W.3 finds any place in the same, above all the report was lodged with delay of more than 16 hours for which no explanation could be advanced. P.W.1 when appeared in the Court further made his presence at the scene of occurrence doubtful, he was unable to state that who shifted the injured Abdullah, he did not state about coming of P.W.2 and P.W.3 to the scene of occurrence. So much so that he finally admitted that he did not witness the incident. Similar P.W.2 who was examined after four days of incident is also found to be neither present at the time of incident nor after the incident till injured Abdullah was shifted to hospital by P.W.3. P.W.2 was unable to explain his conduct as he did not make an attempt to save Abdullah either at the time of incident or even subsequently. He did not accompany injured Abdullah to hospital. This conduct in view of his relationship with deceased does not allow to believe that he was present at the scene of occurrence; further delay of four days in recording his statement under section 161, Cr. P. C. further makes the affair highly clouded with doubt. In the stated circumstances, I have no hesitation to hold that neither P.W.1 nor P.W.2 witnessed the incident. Reliance on their statements would be in conflict with settled principles of criminal justice.

24. P.W.3 claimed that Abdullah while being shifted to hospital in presence of Iqbal disclosed that he was stabbed by Muhammad Ashraf and Abdul Rehman alias Daman, who were accompanied by other people. The said disclosure is termed to be dying declaration. P.W.3 is also paternal cousin of deceased and he was very much available after the case was registered, but his statement has been recorded after three days of the incident. Fateha cannot be considered to be a reason to justify the delay. Besides P.W.3 is found to have made improvement by introducing other persons with Ashraf and Abdul Rehman at the time of incident, this makes his credibility doubtful. In such circumstances his statement calls for independent corroboration, which finds no support from the record, to the contrary prosecution is found to have withheld the evidence which could support P.W.3 as Iqbal who alongwith P.W.3 shifted injured Abdullah to hospital was not examined, which can only give rise to adverse inference. Above all the condition of Abdullah as reflected from medical certificate does not allow to believe that he was able to communicate, hence taking into consideration all the above factors. I am left with no other option but to ignore the statement of P.W.3.

25. After disbelieving the statements of P.W.1, P.W.2 and P.W.3 the case of prosecution is left with the statement of P. W.5 Syed Akram, recovery of knife and the confessional statement of accused/appellant Muhammad Ashraf.

26. P.W.5 Syed Akram stated that on 4‑11‑2000 while he was on his way from his shop to the mosque accused Abdul Hakeem instructed four boys to beat Abdullah till his death and subsequently noise was made that Abdullah has been beaten by four boys. P.W.5 identified the accused/appellants to be the said four boys. Statement of P.W.5 reflects that even after hearing of the instructions being given by acquitted accused to accused/appellants to cause death of Abdullah who happened to be his paternal cousin, ignored the same, this behaviour cannot be deemed to be normal. P.W.5 who was examined on 8‑11‑2000 i.e. on 4th day of incident, seems to have kept the said fact to himself as none of his relatives such as P. W.1, P. W.2 and P. W.3 came up to support P. W.5 in said behalf. Taking all the above factors into consideration, I cannot hold the statement of P.W.5 free from doubt and no reliance can be placed on the same.

27. P.W.9 Maqbool Anwar Tehsildar/Investigating Officer in presence of P.W.7 Dost Ali during inspection of the place of incident on the next day of occurrence found broken knife i.e. blade and handle from the place of incident. The same were sealed in the parcel. Simultaneously the blood‑stained clothes of deceased were also seized by P.W.9 in presence of P. W.4 Syed Muhammad Hashim. Neither the clothes nor the recovered broken knife were sent to Chemical Expert for analysis so as to connect the said knife with the incident. The post‑mortem of deceased was also not conducted. Only external examination was made, which stated about two stab wounds, one on the chest and other on the back of the deceased, however the depth of the said injuries was not stated, while there is nothing on the record to show that the recovered knife was examined by the doctor so as to connect the same with the injuries. In such event of the affair. I am unable to connect the said broken knife with the commission of offence.

28. The last, piece of evidence relied by the prosecution is the confessional statement of accused Muhammad Ashraf recorded under section, 164, Cr.P.C. by P.W.6 Abdul Wahid Durrani Judicial Magistrate, Pishin, to, whom the accused Muhammad Ashraf was produced on 17‑11‑2000, i.e. on the 12th day of his arrest. Before examining the compliance of legal formalities for recording of confessional statement and the effect of delay, the statement itself needs to be examined, so as to see, whether same is of any help to prosecution to connect accused/appellants with the commission of offence. To have the true account of the statement made by accused the same is reproduced as under:‑‑‑

29. The bare perusal of the above statement shows that the story narrated in the same does not fit in the case of prosecution; the statement rather contradicted the allegations made by prosecution. The statement excludes involvement of accused/appellants Faisal, Abdul Rehman, Wali Jan and acquitted accused Abdul Hakeem. The place of incident is shown to be outside of the house, which prosecution claimed to be inside. The weapon of crime is also stated to be different than the one which prosecution recovered from the place of incident. Above all the statement is found to be in direct conflict with the medical/death certificate as the accused claimed to have stabbed Abdullah in his abdomen but to the contrary the injuries on the person of Abdullah were on the right front and left back of his chest. The confessional statement therefore, does not help prosecution to connect any of the accused with the commission of offence. The said statement was not worthy reliance at all, hence I am of the firm view that the confessional statement, which is retracted and is in contradiction with the case of prosecution is to be excluded in toto. For such view I take support of the case Muhammad Amin v. State PLD 1968 Quetta 29, wherein observation to the following effect was made:‑‑

30. "Relying on Allahabad case, we are of the view that the confessional statement of Muhammad Amin cannot be taken into consideration in piecemeal when it contradicts the material aspect of the prosecution case. Even otherwise, much value cannot be attached to retracted concession of this nature as observed earlier. The attempt of the prosecution was nothing else but to seek corroborations of the improbable story by collecting different weak link, in order to make a strong chain to be used against the appellant.

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31. We have already discussed the evidence which the prosecution intends to use as corroborative evidence in the case. They are fake pieces of evidence which cannot corroborate each other in order to secure the conviction of the appellant. Even otherwise the confessional evidence has to be accepted with great caution. We are equally not inclined to rely partly on the statement of the accused made before the Committing Magistrate and at the trial in order to connect him with the crime. His statement is to be read as a whole and cannot be taken into consideration in piecemeal."

31. The upshot of the discussion made hereinabove is that the case of prosecution rested on pieces of evidence which were not only tainted with doubt but were in direct conflict with each other and none of the piece of evidence was of the quality to independently connect any of the accused/appellants with the commission of offence without shadow of doubt, hence the conviction and sentence awarded to the appellants on the evidence discussed hereinabove cannot be upheld. Accordingly the judgment dated 29‑10‑2002 passed by Additional Sessions Judge, Pishin is set aside; the appellants are acquitted of the charge. They be released forthwith if not required in any other case or offence.

32. The appeal is accordingly allowed.

33. N.H.Q./190/Q Appeal accepted.