WILLAYAT HUSSAIN ALIAS CHAND Versus THE STATE M.A. Kazi , Zaheer Qureshi
1. This appeal under section 410, Cr.P.C. is directed again-,.t the judgment, dated 2-7-1987, of IInd Additional Sessions Judge, Karachi (East), whereby the appellant Willayat Hussain alias Chand has been convicted under section 302, P.P.C., and sentenced to imprisonment of life and to pay a fine of Rs.5,000 (Rupees five thousands) to the legal heirs of the deceased under section 544-A, Cr.P.C., as compensation; in default to suffer imprisonment for one year.
2. Prosecution case in brief is that on 15-8-1974, at about 9 o'clock, complainant, Zahid Khan and deceased Abrar were returning home after offering Fateha at the Mazar of 'Hazrat' Baba Wilayat Ali Shah'. When they reached at the wide lane near water tap situated at 'A' Area, Malir Colony, Near Kala Board, Zahid went to drink water while Abrar stayed few paces at the distance. In the meanwhile, Ziaul Haq and Chand appeared and caused knife injuries to Abrar from back side, below the buttocks, due to which Abrar fell down. Shabbir Ali came there and saw the occurrence. Accused Ziaul Haq and Chand then ran away from there. On cries of complainant, there came Jabbar. Zahid brought Abrar to his house and thereafter he arranged taxi and brought Abrar to Civil Hospital and then Zahid went and lodged report. His report was registered under section 307/34, P.P.C., on the same night at 22-00 hours. Abrar died afterwards. Police after usual investigation sent up the case against both the accused namely Ziaul Haq and Willayat Hussain alias Chand, the appellant. The case proceeded and charge was framed against both the accused on 12-4-1978, to which they pleaded not guilty. By the same judgment, co-accused Ziaul Haq was acquitted and appellant, Willayat Hussain alias Chand has been convicted, who has filed this appeal.
3. Prosecution examined 10 witnesses in support of the case. They are P.W.1 Zahoor Ahmad (Exh.2); P.W.2 complainant Zahid Khan (Exh.6), P.W.3 Mubashar Ali (Exh.10) P.W.4 Sabir Ali (Exh.15); P.W.3 Mohammad Iqbal (Exh.21); P.W.6 Dr.' Abdul Hadi (Exh.29); P.W.7 Mohammad Shamsuddin (Exh.32); P.W.8 Abdul Hameed (Exh.34); Court witness Yaqoot Khan (Exh.35); P.W.10 Mohammad Warial (Exh.36).
4. Zahoor Ahmed (Exh.2) is Mashir of Wardat. He has stated that on 16-8-1974, at 4-00 a.m. police inspected the place of incident which was in front of his house near at a water tap. Police secured blood-stained earth and sealed the same and such memo. of inspection was prepared whiff he produced as Exh.3. He also produced Article 'A' battle containing blood-stained earth. In cross-examination, he stated that there was an electric poll at the place from where the blood-stained earth was secured but there was no electric bulb in the said poll and there was darkness at the place of incident.
5. Complainant, Zahid Khan, has supported the case and stated that accused Ziaul Haq and Willayat Hussain alias Chand are known to him from childhood as they used to reside in the same Mohallah. He and deceased Abrar were coming back from the Mazar of 'Hazrat Baba Wilayat Ali Shah' on 15-8-1974 at 8-30 p.m. When they reached near the water tap, near their house, he sat down to drink water. Abrar shouted 'Zahid Bachao'. He saw accused Ziaul Haq and Chand giving injuries to Abrar. He rushed to the place where Abrar was being given injuries. Abrar fell down and started bleeding. Both the accused ran away from the place of incident who had blood-stained knives in their hands. He raised cries which attracted Shabbir and on enquiry, Abrar informed him that accused Ziaul Haq and Chand had` given him the knife injuries. Thereafter, he, Shabbir Ali and Abrar's mother brought the injured in taxi to Police Station. S.H.O. told him to take the injured immediately to Hospital as his condition was precarious. They came to the Hospital with the injured where Abrar died. He then went to police station and lodged the report which he produced as Exh.7.
6. The motive in the F.I.R. as well as in the evidence is that 6 or 7 days prior to this incident, there had been a quarrel between the deceased Abrar and accused Ziaul Haq to which. Ziaul Haq had lodged the report against Abrar. He has also stated that police visited the Wardat and secured blood-stained earth. There was light from all the four sides coming from the houses at the Wardat. Mubashar Ali (Exh.10) stated that on the night between 15th and 16th August, 1974, at about 3 or 4-00 a.m. police took him to the place of incident situated in front of his House No. A-77, Malir Colony. The Wardat was shown by complainant Zahid Khan. Police secured the blood-stained earth and put the same in the bottle which was sealed. Such memo. (Exh.3) was prepared. He has stated that police again called him on 17-8-1974, at 2-30 p.m. and told him that accused Wilayat Hussain was going to produce Chhuri. He accompanied them. Appellant (accused) was also with him in a taxi. Appellant got down from the taxi near Farhan Clinic and went towards bushes near ditch and took out Chhuri in wrapped used papers. It was blood-stained. Such memo. was prepared which he produced as Exh.11. He produced his 164, Cr.P.C. statement as Exh.12. He has stated that Chhuri Article 'B' is same.
7. Sabir Ali (Exh.15) stated that on 16-8-1974, at about 8-45 p.m. he after taking meal was going towards the market. When he reached at the corner of the street, he heard shout of Zahid that Abrar has been stabbed by Ziaul Haq and Chand. He went near the water tap where Abrar was lying on the ground. On enquiry, Abrar told him that Ziaul Haq and Chand were going with Chhuris in their hands. He brought the taxi and removed the injured. When they came near the house of Abrar there came P.W. Jabbar and mother of Abrar. P.W. Jabba enquired from Abrar to which he told that Ziaul Haq and Chand have caused Chhuri injuries to him. 'Thereafter, he, Zahid, mother of deceased and his brother Mumtaz Ali took the injured in a taxi to Malir Police Station. The condition of injured was critical, therefore, S.H.O. told them to rush to the hospital. They brought Abrar to Civil Hospital, who died within 5 to 10 minutes. Zahid went to the police station and lodged the report. Police came and prepared Mashirnama of dead body which he produced as Exh.l6, Inquest Report was prepared in Civil Hospital which he produced as Exh.17. He has stated that place of Wardat gets light from the surrounding houses and there was light at the place where' he saw the accused. He has stated that complainant, deceased and accused are known to him. He has produced his statement recorded under section 164, Cr.P.C.
8. Mohammad Iqbal (Exh.21) stated that about 8 or 9 years back, in the evening time, he went to the police station in connection with his driving licence. S.H.O. Police Station, gave him a licence and asked him to put his signature over the piece of paper which he did. He produced memo. of blood-stained clothes of accused, Wilayat Hussain as Exh.22. He has stated that he was not examined by the Magistrate. He was declared hostile.
9. Dr. Abdul Hadi (Exh.29) stated that on 15-8-1974 at 10-30 p.m., he received dead body of Abrar for post-mortem examination from Police Station Malir. He started post-mortem on 16-8-1974, at 12-15 p.m. and finished at 1-15 p.m. He found following external injuries on the body of Abrar:-
(1) Incised wound back of left hip 2 " from the midline 3 " below the iliac crest/oblique in direction measuring 1 " x 1 " x 3".
(2) Incised wound right buttock inner side " from the midline at the leavel of ischial tuberosity oblique in direction measuring 2" x " x through and through passing the anal carrel just above the anal opening.
(3) The above injuries have clean cut margin acute angles and dilleptical shape and could be caused by sharp-edged and pointed weapons.
10. He has stated that cause of death was due to shock and haemorrhage, as a result of homicidal injury inflicted by sharp-edged and pointed weapon like a long knife, Chhuri or any other similar weapon of assault. All the injuries were ante-mortem. He produced post-mortem report as Exh.30. He has produced the medical certificate (Exh.31) prepared by Dr. Ghulam Rasool on 15-8-1974, at 9-35 p.m. Ghulam Rasool is not in service and he is well-conversant with his signatures.
11. Mohammad Shamsuddin (Exh.32) has stated that on 15-8-1974, he was S.I. Police at Police Station, Malir. At about 10-00 p.m. Zahid Khan came alongwith the injured Abrar, his mother and Shabbir Ali in a taxi. He sent the injured to hospital with a letter. Complainant lodged F.I.R. which he registered and produced it as Exh.33.
12. P.W. Abdul Hameed (Exh.34) has stated that he had gone to Civil Hospital, Karachi, where police inspected the dead body of Abrar Ahmed and in his presence prepared the Mashirnama (Exh.16) and also inquest report (Exh.17).
13. Court witness, Yaqoot Khan (Exh.35) stated that he was entrusted with summons for service of Dr. Ghulam Rasool of Civil Hospital and P.W. Shabbir son of Shehzad. He went to the given address but was informed that Dr. Ghulam Rasool has left his services and with regard to Shabbir, he recorded the statements of Jan Mohammad and Mohammad Akram. They told him that no such person is residing in the locality. He produced the report of Medical Superintendent (Exh.35-A) and statements of Jan Mohammad and Mohammad Akram as Exh.35-C. Mohammad Warial Exh.36, is an Investigating Officer. He stated that on 16-8-1974, he was S.H.O., Police Station, Malir and recorded the F.I.R. of Zahid Khan. He proceeded to the Wardat and prepared the Mashirnama (Exh.8). He also prepared Mashirnama of dead body and inquest report Exh.16, and Exh.17. He examined Zahid Khan, Shabbir Ali, Abdul Jabbar. Zahooruddin and others. On 16-8-1974, he arrested Ziaul Haq and secured blood-stained clothes. On 17-8-1974, he arrested the appellant, Wilayat, who voluntarily led him and produced Chhuri in presence of the Mashirs. He prepared Mashirnama Exh.11. He secured blood-stained clothes from the appellant, Wilayat and prepared Mashirnama Exh.22-A in presence of Mashirs Iqbal and Abdul Hafeez. Thereafter, he submitted challan and sent blood-stained clothes and Chhuri to Chemical Examiner.
14. Appellant, Wilayat Hussain, in his statement under section 342, Cr.P.C. (Exh.41) has denied the allegations and stated the prosecution witnesses have deposed against him being stock-witnesses of police. His statement under section 340, Cr.P.C. on oath was also recorded in which he stated that he was arrested by police at the instigation of co-accused Ziaul Haq. Prior to this case, he refused to act as Mashir, therefore, he has been implicated. He has denied the recovery of blood-stained clothes and crime weapon and has stated that he remained in jail for over 5 years in connection with this case. He has not examined any witness in his defence.
15. Mr. Zaheeruddin Qureshi appearing for the State supports the conviction and stated that there is sufficient evidence against the accused to sustain the conviction. It is also argued that blood-stained clothes and Chhuri have been recovered from him.
16. The evidence against the appellant, consists of two eye witnesses, dying declaration, the recovery of blood-stained Chhuri, clothes and motive.
17. Zahid Khan is a complainant and in his F.I.R., he has stated that Sabir Ali arrived and saw the occurrence. In the F.I.R., it is nowhere stated that Abrar in his presence informed the witnesses that accused Ziaul Haq and Chand gave him injuries. But in the evidence, he has introduced this theory that Abrar had given the names. He stated in cross that when they reached at the police station, his report was not written by the police and told them to go to the hospital, immediately. He came back at the police station at 1-00 or 1-30 a.m. from the `hospital and mother of injured Abrar was also with him then police recorded his F.I.R. This fact has been denied by S.H.O., Mohammad Warial. It is interesting to note that carbon copy of F.I.R. was got produced through the complainant, Zahid Khan (Exh.7) while the original copy of the F.I.R. has been produced by the S.H.O., Muhammad Warial (Exh.33) and time of recording the F.I.R. is given as 22-00 hours. It is not known as to how two First Information Reports of the same incident were produced by the prosecution complainant, in his evidence stated that P.W. Sabir Ali is son-in-law of the mother of deceased Abrar. The eye-witness Sabir Ali has stated that when he came, Abrar was lying on the ground and informed him that Ziaul Haq and Chand caused him injuries. He saw Ziaul Haq and Chand going with Chhuris. In cross-examination, he has admitted that he is married with Mst. Seema, the sister of deceased Abrar.
18. P.W. Zahoor Ahmed, Mashir of Wardat has stated that there was an electric poll at the place of Wardat but there was no bulb. In Mashirnama of Wardat (Exh.3), there is mentioned that there is one electric poll with light. One Mashir has not supported and another Mashir, Syed Bashir Ali has not been examined and not only this but F.I.R. is silent about the source of identification and Mubashar Ali (Exh.10) has stated in cross, that there was no street light at the place of incident. Sabir Ali in examination-in-chief stated that the place of Wardat gets light from the houses surrounding the place of Wardat. From all these contradictions, it is not clear if light was there and accused were identified in the electric light. The F.I.R. is slient but Mashirnama is not supported by the Mashir and Sabir Ali. Eye-witness has given the different story. Mashir, Shabbir Ali contradicts the evidence of other eye-witnesses.
19. It is in the evidence that Chhuri was produced by the appellant, Wilayat Hussain. Mashir Mubashar Ali has supported. Mashir Mohammad Iqbal has not supported so far recovery of blood-stained clothes from Walayat Hussain. Whatever the case may be, the report of the Chemical Examiner has not been produced by the prosecution, though according to the S.H.O. the articles were sent to the Chemical Examiner. In absence of the report, it is not proved that clothes and crime weapon such as Chhuri were blood-stained.
20. The motive is attributed to acquitted accused, Ziaul Haq as it is mentioned in the F.I.R. that there was a quarrel between the deceased Abrar and Ziaul Haq before the incident.
21. Learned Additional Sessions Judge has acquitted the co-accused, Ziaul Haq on the ground that no crime weapon was recovered from him, therefore, he came to the conclusion that Wilayat Hussain had killed the deceased Abrar. The evidence against both the accused is identical. In case of Ziaul Haq, the learned Additional Sessions Judge has not believed the evidence on the ground that there is no recovery. In absence of the Chemical Examiner's report and evidence of Iqbal, Mashir in my view, the evidence is identical against the appellant, Wilayat Hussain. The injured was first taken to the police station and complainant had admitted that his report was not reduced in writing whereas F.I.R. shows that the case was registered at 22-00 hours. There is material contradiction as according to the complainant, he went at the police station at 1-00 or 1-30 a.m. and his report was taken. With regard to the dying declaration, the F.I.R. is silent and prosecution has not asked the doctor if on receiving the injuries, Abrar could have been able to speak. The motive is not against the appellant and there is no other corroboration. Prosecution witness, Abdul Jabbar, who came immediately at the Wardat after the incident as stated by Zahid Khan, in the F.I.R. has not been examined. He was examined before the Committing Court. It is an admitted position that Sabir Ali was married to the sister of deceased Abrar. The source of identification as stated above has not been proved. Ziaul Haq has been acquitted. The State has not filed any acquittal appeal. From the circumstances, stated above, I am of the view that the case is not free from doubt. I, therefore, allow the appeal and acquit the appellant. He is in custody. He shall be released forthwith, if not required in any other case.
22. S.G.D./W-18/K Appeal allowed.