MUHAMMAD ASLAM Versus STATE A.Q. Halepota , Niaz Ahmad Khan, M.A. Kazi
1. HAIDER ALI PIRZADA, J .‑‑The Criminal Appeal No. 122 of 1985 and the connected Confirmation Case No. 13 of 1985 arise from the judgment of the learned First Additional Sessions Judge, Karachi East, whereby he on 10‑8‑1985 convicted appellant Muhammad Aslam under section 302, P . P. C . for causing death of Jamil Khan and sentenced him to death.
2. The occurrence took place on 4‑8‑1981 at 3‑30 p. m. at Bus Stop Bhains Colony in front of Banaras Hotel. F.I.R. (Exh.4) was lodged at the Police Chowki Bhains Colony by Khan Muhammad uncle of deceased on the same day at 4‑00 p.m. It was recorded by Malik Muhammad Anwar S. I. (Court witness No. 2). It was sent to Police Station Quaidabad through Constable Wahid. It was recorded by Israrul Haq A . S . I .
3. The motive as set up by the prosecution was that appellant said to Jamil Khan deceased that his father had abused him yesterday (3‑8‑1981) and he (deceased) had also abused him alongwith his father. Jamil Khan replied that why appellant had abused his father.
4. As for the main occurrence, it has been stated that at about 3‑00 p. m. the complainant left Wara to see off Jamil at Bhains Colony Bus Stop. At 3‑30 p. m. the complainant and Jamil Khan stopped in front of Benaras Hotel, at the time appellant Muhammad Aslam came there and said to Jamil Khan that his father had abused the appellant yesterday and he (Jamil), had also abused him alongwith his father, at that time the complainant kept quiet upon which Jamil Khan replied that why the appellant had abused his father, upon this the appellant taking out knife from the fold of his Shalwar said that he was right and now he cannot go alive, at once he inflicted the knife on the chest of Jamil Khan and thereafter, he repeatedly gave two knife injuries on the abdomen, due to which Jamil Khan fell down. At that time Arif and Wasif were standing who had witnessed the whole incident, thereafter they helped him in catching hold of the appellant at the spot alongwith the Chhuri crime weapon. Jamil Khan succumbed to death due to injuries on the spot. The complainant alongwith Asif and Arif alongwith appellant with Chhuri went to Chowki leaving the dead body at the spot.
5. P.W. 8 Malik Muhammad Anwar S.I.P. arrested appellant and seized blood‑stained Chhuri under Mashirnama (Exh.5) in the presence of three Mashirs Muhammad Asif, Muhammad Arif and Khan Muhammad. He left the appellant in the custody of police and went to the place of occurrence. He prepared inspection memo. (Exh.9). He prepared inspection memo. of dead body (Exh.10), inquest report (Exh.ll). He sent dead body through Muhabat Khan constable to Civil Hospital for post‑mortem. Statements of P.Ws. were also recorded by him at the place of occurrence. After recording the statements he went back to the police post and seized blood‑stained clothes worn by the appellant as per seizure memo. (Exh. 14). He sent blood‑stained earth, blood?stained Chhuri and blood‑stained clothes of the appellant to Chemical Examiner for examination and report. The Chemical Examiner, gave a positive report (Exh. 30).
6. On 4‑8‑1981 Dr. Iqbal Kazi at 7‑00 p. m. had conducted post?-mortem examination on the dead body of Jamil Khan. Dr. Iqbal Kazi was working with Dr. Qaiser Rasool, who was not available and Dr. Qaisar Rasool was conversant with the signature and handwriting of Dr. Iqbal Kazi and identified the same to be of him. The following injuries were found on the dead body:‑---
(1) Incised wound (tramure) 1" x ?" x cavity deep front of chest at little left to central line in between 4th and 5th ribs.
(2) Oblique incised wound 1" x ?" x cavity deep epigestrium region.
(3) Incised wound 1?" x cavity deep (oblique) 1?" left to umbilicus on abdomen. Intestines protruding out of wound.
(4) Incised wound (tramure) 1" x ?" x M.D. on breach in central line lumber region.
7. On internal examination the following damage was found:
8. Thoric cavity full of blood, 4th right rib is factured. Heart pale and there is a nich on (R) side (R) lung also cut at middle lobe. Both lungs pale. Peritonial cavity full of blood. Both injuries on cavity deep and injury No. 2 has perineum liver. Semi‑digested food present in stomach. Liver pale and there was a nich of sharp‑edged weapon left lobe. Spleen and kidneys were pale. Intestines were perfectly below injury No.3.
9. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of sharp‑edged injury to heart (R) lung and liver which are due to assault.
10. To prove its case, the prosecution examined nine witnesses in all. The Court examined two witnesses. P.W.1 Khan Muhammad, P.W.2 Wasif, P.W.3, Muhammad Arif, P.W.4 Muhammad Aslam have given the ocular account of the occurrence. They have supported the prosecution case as detailed above. They claimed to have seen that Muhammad Aslam appellant told deceased that his father had abused him and that he will not spare him. Then the appellant took out a Chhuri from the fold of his Shalwar and inflicted three Chhuri injuries, one on the chest and two on the abdomen. The deceased fell down on the ground and died instantaneously. Wasif and Arif and Khan Muhammad caught hold of the appellant and all the three took him to the police outpost. They also supported the alleged motive for the crime. P.W.1 Khan Muhammad, P.W.2 Wasif, P.W.3 Muhammad Arif and P.W.8 Malik Muhammad Anwar S.I.P. have procured recovery of blood‑stained Chhuri, blood?stained clothes of the appellant. Dr. Qaisar Rasool has proved post?mortem report of deceased. P.W.9 Abdul Hadi has proved chemical report. The rest of the evidence is of formal nature.
11. When examined under section 342, Cr.P. Code the appellant denied all the incriminating circumstances and raised plea of false implication. The appellant stated that he is by caste Tanoli and the prosecution witnesses are Abbasi by caste, There is an old enmity between the two communities. He further stated as follows:
12. My father had purchased land from Yousuf relative of complainant 4/5 years before this incident in district Hazara. This land was wanted by Khan Muhammad father of deceased. On that account the complainant party became more inimical towards us. Wife of deceased had illicit connection with one Daryafat who had enticed her before the incident. Daryafat married wife of deceased after the incident. Daryafat had got Jamil killed."
13. Court witness No. 4 Aslam did not support the recovery of blood‑stained articles from the appellant.
14. The trial Court was convinced that the occurrence stood sufficiently proved. So far as ocular account is concerned, the trial Court was of the view that it required independent corroborating qua the appellant. The trial Court believed the recovery of Chhuri from the appellant, the arrest of the appellant, the medical evidence confirmed and corroborated the ocular version and injuries of the deceased Jamil. Treating the same as corroboration ocular evidence, the trial Court recorded his conviction.
15. Mr. A.Q. Halepota the learned counsel for the appellant has contended that the eye‑witnesses are related and need independent corroboration, the medical evidence is in conflict with the ocular evidence, the recovery of Chhuri and arrest are take and the occurrence was unwitnessed crime. The motive was weak.
16. On the other hand Mr. Niaz Muhammad Khan, the learned counsel for the State and Mr. M.A. Kazi the learned counsel for the complainant supported the judgment of the trial Court. They have argued that witnesses were dependable and the trial Court has rightly convicted the appellant.
17. We have considered the arguments advanced by the learned counsel for the parties with care.
18. According to the trial Court, the evidence of the eye‑witnesses required careful scrutiny and for conviction of the appellant the testimony of the eye‑witnesses was not sufficient unless it was corroborated by other evidence. Before we turn to the pieces of corroborative evidence on the basis of which the learned trial Court convicted the appellant, we may here refer to the evidence of the eye‑witnesses regarding seat and number of injuries on deceased Jamil.
(i) according to the complainant Khan Muhammad the appellant took out Chhuri from the fold of his Shalwar and stabbed Jamil Khan causing him two injuries on his chest and one on his abdomen. The deceased Jamil Khan fell down and died at the spot.
(ii) According to P.W. 2 Wasif, appellant inflicted three blows to deceased, one on chest and two on stomach.
(iii) According to Muhammad Arif, appellant gave one blow on the chest and two blows on the belly.
(iv) According to P.W.4 Muhammad Aslam, the appellant inflicted three Chhuri injuries, one on the chest and the two on the abdomen.
19. We may here point out that according to the post‑mortem report (Exh.24), four injuries were caused on the deceased Jamil Khan. One is on the chest, two are on the abdomen and one on the central line t lumber region. These pieces of evidence of P.Ws. 1, 2. 3 and 4 are in conflict with the medical evidence. According to the eye‑witnesses the appellant inflicted three injuries with Chhuri. Dr. Qaisar Rasooi has only produced the post‑mortem report. He has stated that he has no personal knowledge about the facts of the case as he has not dealt with the case himself. He has not deposed that all the injuries were caused by a sharp inflicting weapon such as Chhuri. In his evidence, Dr Qaisar Rasool has not deposed that injury No.1 was sufficient in the ordinary course of nature to cause death and that all the injuries appear to have been caused by a sharp cutting weapon such as Chhuri. This expert evidence has come on record from the prosecution side and no effort was made to get any clarification as to whether the injuries could have been caused by Chhuri.
20. We are of the view that the medical evidence is evidence which depicts the type of injuries caused and which may confirm the ocular testimony as regards the type of injuries but it does not by itself connect the appellant with the commission of the crime. In view of the conflict with medical evidence and the ocular evidence, as mentioned earlier, in our view, medical evidence in the case could not be treated as evidence in corroboration of the ocular evidence.
21. In our view the motive advanced by the prosecution for the murder is not only weak but has also not been established and in any case as rightly pointed out by Mr. A.Q. Halepota, the learned counsel for the appellant that motive by itself is not sufficient for corroboration, in the circumstances of the case.
22. In the case of Nawab v. The State 1979 P Cr. L J 736, a Division Bench of this Court held that motive however, strong, cannot provide corroboration to other pieces of evidence which are themselves infirm and not worthy of credence. In the instant case the father of the deceased was not at all examined by the prosecution. He was the only person who could say about what was transpired a day earlier to the day of occurrence. The trial Court observed that the ocular evidence has been corroborated by motive. We find this observation or conclusion of the trial Court to be of no substance as the P . Ws. were not at all aware as to what was inspired on 3‑8‑1984.
23. P. W.1 stated that many other persons had also collected there but he could not give the number of the persons collected at the spot. P.W.2 Wasif also stated that the incident took place on the road where many people were passing and in his cross‑examination he admitted that about two hundred persons usually remain present at the taxi‑stand and the veterinary hospital. According to him about twenty customers were present in Banaras Hotel. He also stated that about ten or fifteen persons collected there. Thus, the eye‑witnesses P.Ws. 1 and 2 have admitted that several persons were attracted to the spot soon after the occurrence but still nobody was examined as an independent witness who could at least say that he came to the spot after the incident and was informed by the eye‑witnesses that the appellant had committed offence. It is an admitted position that the occurrence had taken place in front of Banaras Hotel, near taxi‑stand and veterinary hospital but the owner or any other person was not examined in the instant case.
24. We find force in the submission that had P.W.1 Khan Muhammad been with the deceased at the time of attack on him and had P.Ws. 2 and 3, Wasif and Arif, come out of hotel after taking tea and seen the attack on him, being close relations, they would have interfered. It may be added that the appellant took out the Chhuri from the fold of Shalwar and caused first injury on the chest. Under the circumstances there was much time for the deceased to escape and for the others to help him. The appellant repeated the blows. According to ocular evidence, the appellant gave the deceased three blows and according to the medical evidence the appellant gave four blows. In this view of the matter, the presence of the eye‑witnesses at the place of occurrence seems doubtful.
25. The evidence led by the prosecution consists of ocular evidence, motive, medical evidence and recovery of blood‑stained Chhuri, arrest of appellant at the spot and securing of his blood‑stained clothes. The learned trial Judge accepted the said evidence. The recovery of blood?stained Chhuri, blood‑stained clothes and the arrest were made in presence of Mashirs P.W.1 Khan Muhammad, P.W.2 Wasif and P.W.3 Muhammad Arif who are not only related to the deceased but also do not belong to the locality where the occurrence took place and where blood‑stained Chhuri and blood‑stained clothes were secured. P.W.1 Khan Muhammad has admitted his relationship with the deceased, that is, deceased is his nephew. P. W.2 Wasif has also admitted his relationship, that is cousin. Similarly P.W.3 Muhammad Arif has also admitted that deceased was his real cousin. Similarly P.W.4 Muhammad Aslam has admitted that deceased was his real cousin. It is an admitted position that P.Ws. 1, 2, 3 and 4 are residents of Orangi and the incident took place at Bhains Colony, Landhi. According to P.W.1 he was an employee of Haji Shafi Nagroi. According to Wasif and Muhammad Arif, they are employees of Astham. Court witness 4 Astham has denied that they are his employees while others did not establish that they are working at the Bhains Colony. In the case of Rasool Bux v. The State 1980 S C M R 225 it was held: "to say the least, it was very strange that Ahmad Khan went out of his way to select as Mashir a relation of the complainant who lived in a different village. But this means that the recoveries are in utter disregard of the provisions of section 103 of the Cr.P.C. Unfortunately this was a circumstance which escaped the attention of the learned Judges."
26. In view of the above dictum and for reasons given above the evidence of Mashirs P.Ws. 1, 2, 3 and 4 as regards recoveries of blood‑stained Chhuri, blood‑stained clothes of the appellant and arrest of the appellant, does not inspire confidence.
27. Coming to the evidence of the Investigation Officer who made recoveries, we may refer to the decision made in the case of Abdullah Shaikh v. Hafi Amin Shaikh and 3 others 1979 P Cr. L J 747 wherein it was held:‑---
28. "It is, therefore, clear that although in principle a Police Officer's evidence can be relied upon in support of recovery of incriminating articles but each case must depend upon its own facts and the Court must be on guard to view with suspicion any extraordinary conduct on the part of Police Officer to adopt a course which will nullify the effect of the safeguards provided by section 103, Cr.P. C. In using the words 'respectable witnesses' the obvious legislative intentment was to guard against concoction. Failure to secure an independent witness to be the Mashir of the recoveries when admittedly such witnesses could be easily available is a circumstance which reflects upon the weight to be attached to this evidence."
29. In another case Allah Rakha v . The State 1985 S C M R 453 it was held:‑--
30. "We are satisfied that Muhammad Sadiq the recovery witness could not be relied upon without further corroboration, regarding the recovery of the revolver. Although there are some cases in which the testimony of an Investigating Officer was relied upon in the matter of recovery of crime weapons. But that depends upon the circumstances of each case as also the level of credibility of the Investigating Officer concerned. In this case learned counsel for the appellant made reference to evidence to show that the conduct of the Investigating officer was not above board. The submission is supported amongst others by the approach of the High Court also namely that the recovery of Kassis was not used as corroboration against Abdul Majid and Abdul Aziz; because serious possibility was visualised regarding the planting of human blood on them during the investigation. It could not have been done without the, complicity of the Investigating Officer. That being so his testimony also without further independent support cannot be relied upon for accepting the recovery of the crime weapon from the appellant."
31. In the instant case the way in which S.I. handled the investigation is not above board. Firstly the appellant was brought before him by the P.Ws. He prepared memo. of arrest and seizure of blood‑stained Chhuri. There is no mention of blood‑stained clothes of the appellant, the presence of C.W. No.4 Astham and Muhammad Arif. Muhammad Arif is cousin of deceased. Astham did not support the document. According to him, blood‑stained clothes were not secured in his presence. The learned counsel for the appellant has criticized the manipulation of time. Lastly there were independent persons collected at the place of occurrence. The Investigating Officer did not examine any independent person. He did not secure the blood‑stained clothes, blood‑stained Churri in the presence of independent witnesses from the same locality. The Investigation. Officer did not examine Muhammad Shafi where Khan Muhammad was employed.
32. In view of the above reasons, it would be difficult to place reliance on the evidence of the S.I. We hold that the evidence of recoveries cannot corroborate the ocular evidence and the same has to be ignored.
33. On appraisal of the evidence on record, we have no hesitation to hold that the eye‑witnesses were interested and as such their evidence without independent corroboration cannot be based for conviction of the appellant. It seems that the trial Court sought the requisite corroboration of eye‑witnesses from three sources, namely medical evidence, motive and recoveries. So far medical evidence and motive in this case, the same are not helpful to prove the involvement of the appellant in the commission of the crime. The recovery was also not proved in this case. As stated above, no such independent corroboration is forthcoming in the instant case to support the eye‑witnesses for the purpose of convicting the appellant.
34. The upshot of the above discussion is that the prosecution has failed to bring home the guilt of the appellant; the appeal is allowed and the reference for confirmation of death sentence is hereby rejected.
35. S. G. D. ?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.