MUHAMMAD BUX Versus State

NAIMATULLAH PHULPOTO, J.--- Appellant Mohammad Bux was tried by learned Sessions Judge, Malir in S.C.No. 420/2009 for offence under section 302, P.P.C. on the conclusion of the trial, appellant Mohammad Bux was found guilty, he was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life and to pay fine of Rs.50,000/-, in case of default in the payment of fine, appellant was further ordered to suffer R.I for 02 years. Appellant was extended benefit of Section 382-B, Cr.P.C.

2. Brief facts leading to the Appeal are that on 27.11.2008 at 0030 hours, FIR of the incident was lodged. It is alleged by the complainant that he received telephonic call from P.W Ismail on 25.11.2008 who informed him that there was a quarrel between Mohammad Ishaque (deceased) and appellant Mohammad Bux. It is alleged that appellant Muhammad Bux caused lathi blow to Muhammad Ishaque, who received injury and died in the hospital on 26.11.2008. After receipt of such telephonic information, he came to Karachi where he met P.W. Saindad and lodged the FIR, it was recorded vide Crime No. 125/2008 on 27.11.2008 at PS Gadap City under section 302, P.P.C.

3. After registration of the FIR, investigation was handed over to SIP Anwar-ul-Haq, who inspected place of incident and recovered Danda from place of wardat. He recorded 161 Cr.P.C. statements of P.Ws. Appellant Mohammad Bux was arrested on 26.03.2009. Danda was sent to Chemical Examiner for report on 16.11.2009. Positive report was received. On the conclusion of the investigation challan was submitted against the appellant under section 302, P.P.C.

4. Charge was framed against appellant by Trial Court under section 302, P.P.C. at Ex.02, accused pleaded not guilty and claimed to be tried.

5. In order to prove its case, prosecution examined following witnesses:--

(i) P.W-1/complainant Abdullah at Ex.4.

(ii) P.W-2 Muhammad Achar at Ex.5.

(iii) P.W-3 Abdul Rehman at Ex.7.

(iv) P.W-4 Dr. Nisar Ali Shah at Ex.8.

(v) P.W-5 Dr. Ghulam Sarwar Channa at Ex.10.

(vi) P.W-6 SIP Muhammad Sadiq at Ex.11.

(vii) P.W-7 SIP Anwar-ul-Haq at Ex.13.

Thereafter, prosecution side was closed.

6. The statement of appellant was recorded under section 342, Cr.P.C. at Ex.15 appellant has claimed false implication and denied the prosecution allegations. He has stated that P.Ws. Saindad, Abdul Rehman and Muhammad Achar had deposed against him due to enmity. Appellant has examined in defence DWs Khamiso and Moula Bux. However, he declined to examine himself on oath in disproof of prosecution allegations. Both defence witnesses have deposed that on 25.11.2008, they were present in Otaq at Mithi, along with accused Muhammad Bux and complainant Abdullah, where PW Muhammad Ismail informed complainant that deceased has received blow by a cow. One DW has stated that there is dispute between complainant party and accused over the land.

7. P.W Muhammad Achar has deposed that incident took place on 25.11.2008 at 2:00 or 3:00 P.M. At that time, he along with appellant Muhammad Bux, P.Ws Abdul Rehman, deceased Muhammad Ishaq and other persons was present at cattle pond of Jameel where appellant Muhammad Bux caused lathi blow to Muhammad Ishaq on his forehead. Injured Muhammad Ishaq was taken to the Hospital by PWs Juman and Hakim. Thereafter, PW Abdul Rehman telephoned to Abdullah and narrated him the incident. In the cross-examination eye-witness Muhammad Achar has admitted that his 161, Cr.P.C. statement was recorded on 15.01.2009. He has admitted that there was no dispute between deceased Muhammad Ishaq and appellant Muhammad Bux. He has denied the suggestion for deposing falsely against the accused.

8. P.W. Abdul Rehman has deposed that incident had taken place on 25.11.2008 at 2:00 pm. At that time, he was present in cattle pond of one Jameel. There was some dispute between appellant Muhammad Bux and deceased Muhammad Ishaq. Thereafter, Muhammad Bux gave danda blow at the head of Muhammad Ishaq and he succumbed to the injuries in the Hospital. He has stated that his 161 Cr.P.C. statement was recorded by the police on 15.01.2009. He has admitted that about 20 persons were working in the cattle pond at the time of incident. In the cross examination he has admitted that P.Ws. Jumman and Hakim have stated before the investigating Officer in their statements that horn of cow stuck to the deceased Muhammad Ishaq. He has denied the suggestion that he had not witnessed the incident. He has also denied that he was deposing falsely due to relationship with the deceased.

9. I have carefully heard learned counsel for the parties and have gone through the entire evidence with their assistance.

10. It has been argued by the learned counsel for the appellant that prosecution has failed to prove its case against the appellant beyond reasonable doubt. It is argued by Mr. Samoo Advocate for the appellant that there was delay of about 2 days in lodging of the FIR for which no plausible explanation has been furnished. As per prosecution case, there were four eye-witnesses of the incident, none of them have been examined by the prosecution at trial. P.Ws. Achar and Abdul Rehman were chance witnesses; they belonged to Mithi District Tharparkar; incident had occurred at Karachi and no plausible explanation has been furnished by P.Ws. Achar and Abdul Rehman regarding their presence at the place of incident at relevant time. He has further contended that P.Ws. Achar and Abdul Rehman were set up witnesses and their 161, Cr.P.C. statements were recorded after 50 days of incident on 15.01.2009. Mr. Samoo Advocate for the appellant further contended that P.Ws. Achar and Abdul Rehman have replied in cross-examination that PWs Hakim and Juman in their 161, Cr.P.C. statements have stated before the police that deceased had sustained injury with horn of a cow. He has also argued that DWs had deposed that PWs Achar and Abdul Rehman so also accused were with them at Mithi at the time of incident and they had received telephonic information there about the incident. He has also argued that there was no postmortem examination of deceased and danda/soti was sent to the Chemical Examiner after 11 months of its recovery which according to counsel for the appellant loses its evidentiary value. In support of the contentions, reliance has been placed on Irshad Ahmed v. The State (2011 SCMR 1190).

11. Mr. Ali Haider Saleem learned APG argued that appellant has been implicated by the two eye-witnesses namely Abdul Rehman and Achar ocular evidence is corroborated by medical evidence and Danda was found blood stained. He has argued that Trial Court has rightly appreciated the evidence and he supported the judgment of the Trial Court. Lastly he argued that eye-witnesses were not chance witnesses but they were present at the place of incident.

12. After hearing the learned counsel for the parties and going through the evidence minutely with the assistance of the learned counsel for the parties, I have come to the conclusion that prosecution case is highly doubtful for the reasons that incident took place on 25.11.2008 at 1400 hours and FIR was lodged on 27.11.2008 at 0300 hours. No plausible explanation for such delay has been furnished. Complainant has stated that he was present in village Karam Ali Samoon District Mithi. He received telephonic call on 25.11.2008 at 3:00 P.M. P.W Muhammad Ismail informed him that appellant Muhammad Bux has caused injury to Muhammad Ishaque on his head. P.Ws. Juman and Hakim had removed injured to the Hospital for treatment. Complainant came from Mithi and he proceeded to the Hospital along with P.W. Saindad where Muhammad Ishaque died in the Hospital. Prosecution has failed to examine eye-witnesses Ismail, Hakim, Juman and Saindad. Statements of P.Ws. Achar and Abdul Rehman under section 161, Cr.P.C. were recorded after 50 days in which they claimed to be eye-witnesses of the incident, but they have not disclosed at trial the probable cause of their presence at the relevant time at the place of incident. It is admitted position that they reside at Mithi. They have also admitted in cross examination that PWs Hakim and Juman in their 161, Cr.P.C. statements recorded before the I.O. had stated that deceased had received horn stuck by a cow. Under these circumstances, evidence of P.Ws. Hakim and Juman in the background of the enmity as alleged by the appellant cannot be relied upon without independent corroboration, which is lacking in this case. It is admitted fact that no postmortem examination of deceased has been conducted in this case only deceased was examined by the Doctor when he was in injured condition and stated that deceased had received injury by hard and blunt substance. It appears that postmortem examination was not conducted, possibility cannot be ruled out that police did so for procuring and planting the eye-witnesses and cooking up a story in the prosecution. To me, non-examination of material prosecution witnesses namely Ismail, Juman, Hakim and Saindad whose names are mentioned in the FIR would be fatal to the prosecution case. It is not controverted that both eye-witnesses namely Muhammad Achar and Abdul Rehman produced by prosecution in this case are related and inimical witnesses who were chance witnesses and reside hundred miles away at Mithi. These eye-witnesses failed to advance any explanation for their presence at the place of occurrence. It is also noticeable that despite their claimed presence at the scene of crime at the relevant time, the said two eye-witnesses had not tried to catch hold the appellant. They also failed to appear before the I.O. for recording their 161, Cr.P.C. statements immediately after registration of the FIR. These circumstances are quite relevant for just decision of the case. Law is quite settled that before placing a whole hearted reliance upon evidence of such witnesses in a case, involving capital charge, the Court should look for material corroboration of such statements from some independent sources which is lacking in this case. Motive has also not been established at trial. The alleged recovery of danda from place of occurrence was legally inconsequential as crime weapon was sent to expert with inordinate delay without plausible explanation. Prosecution has failed to receive any corroboration from motive or from recovery of danda. Medical evidence by its nature could not identify the culprit of alleged incident. Thus, medical evidence was of no avail to prosecution in this case. Trial Court has failed to discuss the defense evidence. From the perusal of the evidence of the defense witnesses, it appears that defense version might be the true. Court has to be very careful in weighing evidence of interested and chance witnesses and judicial approach has to be cautious in dealing with such evidence. Findings of the Trial Court is based on surmise and same is not sustainable under the law. Rightly reliance has been placed on Irshad Ahmed (supra) in which Honourable Supreme Court has been pleased to observe as under:--

"The ocular account of the incident in issue had been provided before the learned trial Court by Mukhtar Ahmed complainant (P.W.1) and Shaukat Ali (P.W.2) and we have found that both the said witnesses were not only very closely related to Shehzad Ahmed deceased but they were also chance witnesses. Mukhtar Ahmed complainant (P.W.1) was the father of Shehzad Ahmed deceased whereas Shaukat Ali (P.W.2) was a brother of the complainant and a paternal uncle of the deceased. The occurrence in this case had taken place far away from the houses of the said witnesses and they had statedly seen the occurrence when they were in search of the deceased. We have found it to be quite strange that if the appellant had to murder the deceased then he did not have to wait for arrival of the said witnesses for starting infliction of injuries upon the deceased. It is also noticeable that despite their claimed presence at the scene of the crime at the relevant time the said eye-witnesses had not tried to stop the appellant from inflicting injuries upon the deceased especially when the appellant was not armed with any firearm to ward the said eye-witnesses off or to keep them away. The medical evidence provided by Dr. Muhammad Aslam (P.W.7) had shown that the murder of the deceased could have taken place at about midnight during the night between 13/14-8-2001 and not at about 07-30 p.m. on 13-8-2001 as asserted by the above mentioned witnesses. We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted. There is also yet another factor available on the record which detracts from the veracity of the above mentioned eye-witnesses produced by the prosecution and that is that both the said witnesses had claimed that the hatchet stuck up by the appellant on the head of the deceased had got stuck in his head and that hatchet was still stuck in the head of the deceased when the police had arrived at the spot. The statement made by Ghulam Mustafa (P.W.8), the Investigating Officer, before the learned trial Court showed that upon his first visit to the spot he had found the deadbody of Shehzad Ahmed deceased at the place of occurrence and after preparing the Inquest Report the deadbody was sent by him to the mortuary for its post-mortem examination. The said investigating officer had said absolutely nothing about seeing any hatchet stuck in the head of the deadbody and even in the Inquest Report the Investigating Officer had said nothing about finding any hatchet stuck in the head of the deadbody. It is, however, strange that Dr. Muhammad Aslam (P.W.7) had stated before the learned trial Court that at the time of conducting the post-mortem examination he had taken a hatchet out of the head of the deadbody wherein it was found stuck at that time. The record further shows that it was a police officer who had subsequently produced that taken out hatchet before the Investigating Officer after the post-mortem examination of the dead body."

13. For what has been discussed above, I have come to the conclusion that prosecution has failed to prove its case against the appellant beyond reasonable doubt. This appeal is therefore, allowed, the conviction and sentence of the appellant recorded by the Trial Court vide judgment dated 05.03.2011 are set aside the appellant is acquitted of the charge by extending benefit of doubt. He shall be released from the jail forthwith if not required to be detained in connection with any other case.

HBT/M-156/Sindh Appeal allowed.