NAUSHAD ALI Versus BABAR ALI

In this case some very interesting and important questions of law arise for consideration, therefore, it is necessary to set out accurately the facts in some detail.

2. Deceased Mst. Nargis'was married to Babar Ali, the respondent No.1. 1t is alleged that the respondent No.1 did not behave properly with her and consequently about 1‑1/2 months prior to this incident she had approached the members of Panchait before whom the respondent No.l is said to have divorced her. Deceased Mst. Nargis, therefore, resided in the house of her father Shafi Muhammad situated on the 5th floor of Shaukat Ali Building, Ranchore Lines Karachi. The case of the prosecution as unfolded in the F.I.R. lodged by applicant Naushad Ali in his own words runs as follows: ‑‑

"I reside with my family members at the above address (3rd Floor, Shaukat Ali Building, Ranchore Lines, Karachi). Today, viz., 11‑12‑1986 at 9‑30 a.m. I was present in the house when I was attracted by cries raised by Mst. Hameeda and Mst. Nargis from upper storey. I rushed there and found Babar, the Ex‑husband of Mst. Nargis causing Chhuri blows to Mst. Nargis, while her sister and father were making attempts to capture him (Babar), and he was pushing them. Mst. Nargis had injuries on her abdomen and fingers. In the meantime Liaquat and Jehangir reached there and they captured Babar. Liaquat then took the injured to the hospital where she died. The investigation be made."

3. Dr. S.M. Nizamani of Civil Hospital Karachi, who had received the dead body of Mst. Nargis informed concerned police about the arrival of the dead body of Mst. Nargis. Naseer Ahmed, S.H.O. Nabi Bux Police Station then rushed to Civil Hospital, Karachi, where he recorded 154, Cr.P.C. statement of applicant Naushad Ali, which was subsequently incorporated in 154, Cr.P.C. book. The respondent No.l who was present there was then arrested and from his possession blood‑stained Chhuri was recovered which was subsequently sent to Chemical Examiner, Karachi who on examination found it stained with human blood. After completing the investigation the respondent No.l was sent up.

4. The trial commenced before 1st Additional Sessions Judge (South) Karachi, where the respondent No.l pleaded not guilty. At the trial the prosecution examined Naushad Ali (P.W.1), Shafi Muhammad (P.W.2), Mst. Hameeda (P.W.3), Jehangir Ali (P.W.4), Kazi Siraj Ahmed City Surveyor (P.W.5), Liaquat Ali (P.W.6), Dr. S.M. Nizamani (P.W.7) and Naseer Ahmad S.H.O. (P.W.8).

5. The respondent No.l met the charge with a denial. His defence in his own words is as follows: ‑‑

"I am innocent and have been victim of enmity. On the day of incident when I came to know about the murder of my wife at 3 p.m. I went to hospital to know the' actual position. I was detained there by two policemen and I have been falsely involved. No independent witness is examined by prosecution. Nothing was recovered from me. I pray justice."

6. On the assessment of evidence available on record the learned Additional Sessions Judge` extended benefit of doubt to respondent No.l and acquitted him vide judgment, dated 2‑3‑1989. The applicant made approaches to Provincial Government for filing acquittal appeal, but without success. It is in these circumstances that the present revision application is filed under section 439, Cr.P.C. '

7. I have heard Mr. Sardar Muhammad Ishaque, learned counsel for applicant, Mr. Abdul Mujeeb Pirzada, learned counsel for respondent N4.1, and Mr. S.Z.A. Qureshi, learned counsel for State. Mr. Qureshi has supported the impugned judgment.

8. There is distinction between a revision and an appeal. In the latter the applicant is given statutory right to demand an adjudication from the Court either on a question of fact or on a question of law or upon both. When a matter comes up on revisional jurisdiction the applicant has no right 'A` whatsoever, beyond the right of bringing his case to the notice of the Court. It is for the Court to interfere in exceptional cases where it seems that some real and. substantial injustice has been done. That is the main point which this Court has to consider. (See the Commentary on Code of Criminal Procedure, 1898, by Mitra). It was obviously for this reason that Mr. Abdul Mujeeb Pirzada, learned counsel for respondent No.l has contended with force that the High Court should be loath to entertain a criminal revision against the order of acquittal where the Government declined to file an acquittal appeal. He has also endeavoured to show that where the accused is once acquitted presumption of his innocence becomes doubly strong and exceptional grounds are required to interfere with an order of acquittal. The cases reported as Feroz Khan v. Captain Ghulam Nabi Khan and another P L D 1966 SC 424, Mr. Fida Muhammad Khan Advocate v. Muhammad Zaman Khan and 5 others P L D 1975 Pesh. 38, Lakha v. Ata Muhammad arid 3 others 1982 P Cr. L J 155, Abdul Rehman and others v. The State and P L D 1983 SC 73 and Abdur Rehman and another v. Fida Hussain and 3 others 1989 P Cr. L J 2028 furnish certain guidelines to deal with cases of this nature on revisional side. The trend of the authorities available on this subject indubitably leads to the following conclusions as settled propositions of law: ‑‑

(i) A revision against the, order of acquittal is not to be regarded as in some sort of appeal on a question of law.

(ii) A Court of revision has not to interfere against an order of acquittal unless non‑interference would involve endorsement of patently unfair order or one which leads to miscarriage of justice.

(iii) The Court of revision will not interfere merely because the lower Court has taken different view of evidence.

(iv) The revision does not create any right in any party but only conserves the power to see that justice is done according to recognised rules of criminal jurisprudence.

(v) A Court of revision will interfere in the finding of acquittal only in very exceptional circumstances and governing consideration must Q always be whether, in relation to the proved facts and circumstances justice has been done in accordance with law.

9. With these settled propositions of law in view, let me examine the evidence available on record and the contentions raised on behalf of the applicant in support thereof. The case of the prosecution against respondent No.l consists of following items of evidence: ‑‑

(i) Direct testimony consisting of Naushad Ali (P.W.1), Shafi Muhammad (P.W.2), Mst. Hameeda (P.W.3), Jehangir Ali (P.W.4) and Liaquat Ali (P.W.6).

(ii) Apprehension of respondent No.l on the spot alongwith blood‑stained Chhuri.

(iii) Arrest of respondent No.l at Civil Hospital Karachi by police and recovery of blood‑stained Chhuri from his possession.

(iv) Report of Chemical Examiner (Exh.29) to the effect that the Chhuri alleged 'to have been recovered from the possession of respondent No.l was stained with human blood.

(v) Motive.

10. There are certain facts and circumstances in this case which are either undisputed or proved from the record. They are as follows:‑

(i) Deceased Mst. Nargis was residing in the flat of her father situated in Shaukat Ali Building, Ranchore Lines, Karachi, during the days when this incident took place. .

(ii) The incident took place in broad daylight at 9‑30 a.m., hence the question of mistaken identify does not arise.

(iii) That out of five eye‑witnesses four, namely, Naushad Ali (P.W.1), Shafi Muhammad (P.W.2), Jehangir Ali (P.W.4) and . Liaquat Ali (P.W.6) resided in the same building, viz., Shaukat Ali Building, where the incident took place. Their presence in the said building was, therefore, not by chance.

(iv)Mst. Hameeda (P.W.3) sister of deceased Mst. Nargis resided at a distance of four streets away from the place of incident.

(v) All the five witnesses who figure as eye‑witnesses are related to deceased Mst. Nargis.

(vi) The incident took place inside the flat of Shafi Muhammad (P.W.2).

(vii) There was no hostility between the parties which is clear from the following conclusion of the Additional Sessions Judge:‑‑

`On the record there is no enmity between the witnesses and present accused ...."

(viii) The name of respondent No.l finds place in the F.I.R. in which the names of all the above eye‑witness are also disclosed.

11. The evidence adduced by the prosecution was discarded by learned Additional Sessions Judge on twofold grounds, firstly, that the witnesses were interested, and secondly, their evidence was contradictory creating doubt, about their presence at the relevant time when the incident took place. On the first ground whether the witnesses who are interested can be relied upon, the cases reported as Niaz v. The State P L D 1960 SC (Pak.) 387 and Nazir and others v. The State P L D 1962 SC 269, provide a complete answer. As observed by the Supreme Court an interested witness is one who has a motive for falsely implicating an accused person. The law does not require that the evidence of witnesses who are related to deceased person, should be corroborated by other independent evidence before it can be accepted in all circumstances. The respondent No.l had obviously no enmity with any of the five eye‑witnesses and this was in fact the conclusion drawn by learned Additional Sessions Judge himself. According to Malik's Criminal Trials, 2nd Edition, in assessing and evaluating the evidence of eye‑witnesses, the two important considerations are: (1) whether in the circumstances of the case, it was possible for the eye‑witnesses to be present at the scene or their explanation for their presence at the scene can be accepted, and (2) whether there is anything inherently improbable or unreliable in their evidence. In this view of the matter, it is difficult to follow the reasoning of the learned Additional Sessions Judge.

12. In deed, for weighing evidence there can be no specific formula and no generalisation is possible in such matters. Each case has its own features and each witness his own peculiarities. However, close relatives of deceased person would normally be most reluctant to spare the real culprit and involve an innocent person for no obvious reason. The testimony of the interested witnesses cannot be brushed aside on the ground of relationship alone. It could be the relatives alone who were expected to be in the house of deceased or who could reach there after hearing the shrieks of two ladies. Outsiders or strangers had no reason to be present in the flat of Shad Muhammad (P.W.2) when deceased Mst. Nargis was done to death.

13. The contradictions referred to in the impugned judgment are not really contradictions of nature which could shake the probative value of the evidence of the prosecution witnesses, but these were the errors in the statements which were recorded long after the incident. Even otherwise mere contradictions should not be the basis of acquittal, if on a thorough scanning, Ix the essence of the prosecution case is found to be established.

14. The evidence of Mst. Hameeda (P.W.3) who is the sister of deceased Mst. Nargis further goes to show that the applicant had come to take back Mst. Nargis, which ultimately culminated into this unfortunate incident. The learned Additional Sessions Judge, therefore, erred in holding that there was no motive for this incident. The motive although is not an element essential to prove the guilt in a criminal case, but it is a factor to be taken alongwith other circumstances.

15. Thus, from whatever point of view the matter may be looked at, it leads to the conclusion that the- impugned judgment is palpably erroneous, arbitrary, perverse and bad in law and it requires the interference by this Court. In fact it is one of those crises where finding on fact could be disturbed in revision, as the same has resulted in grave miscarriage of justice.

16. In the result the impugned judgment is set aside and the case is remanded to Ist Additional Sessions Judge (South) Karachi, for retrial, which a will be de novo. The respondent No.l who is on bail is allowed to continue on bail till the disposal of the case against him.

17. It is needless to point out that the observations made in this judgment are restricted to the disposal of this revision application and they should not influence the mind of the Additional Sessions Judge while deciding the case afresh.

N.H.Q./N-388/K ???????? ???????????????????????????????????????????????????????????????? ?????? Case remanded.