MAJID Versus THE STATE Mohammad Hayat Junejo , Rasheed Tariq Khan

This appeal has been filed against the judgment of learned Sessions Judge, Dadu dated 12‑10‑1987, whereby he convicted the appellant under section 302, P.P.C. and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.5,000 or in default of payment of fine to undergo further rigorous imprisonment for a period of one year.

2. The case of the prosecution in brief is that the deceased Mst. Mir Bibi was mother of the appellant. Complainant Haji I do was brother of the deceased and maternal uncle of the appellant. P.W. Photo is father of the appellant and P.W. Jafar is brother of the appellant. P.W. Haji Idrees is son of complainant Haji I do.

3. On the day of incident viz. 9‑12‑1986, the appellant is alleged to have asked for Rs.50 from his mother deceased Mir Bibi which she refused. The deceased as well as the appellant are said to have gone out for cutting grass and at about 2‑00 p.m. near the Factory of Mohammad Mir Behar, the appellant is alleged to have given hatchet blows to the deceased and killed her.

4. The incident is alleged to have been witnessed by complainant Haji I do P.Ws. Haji Idris, Photo and Jafar. Such F.I.R. was lodged by complainant Haji I do at Piarogoth Police Post on the same day at about 2‑30 p.m. S.I.P. Mohammad Aslam of Piarogoth Police Post registered the F.I.R. in the Roznamcha and proceeded to the scene of offence. He prepared Mashirnama of the scene of offence, inquest report and sent the dead body of the deceased for post‑mortem examination. On 13‑12‑1986 he arrested the appellant in presence of Mashirs Mohammad Ali and Haji Kandero. The appellant is alleged to have taken the police party to the sugarcane fields of Yakoob Arain and took out a blood‑stained hatchet which the Sub‑Inspector of Police secured and sealed in presence of the same Mashirs. Subsequently, this hatchet was sent to the Chemical Analyser, whose report (Exh. 24) shows that it was stained with human blood. The appellant was produced before the Resident Magistrate, Dadu where judicial confession was recorded by the learned Magistrate. After usual investigation the appellant was challaned in the Court where he was convicted as above.

5. The case of the appellant before the trial Court was total denial. He stated that he had gone to jungle for cutting the trees for goats and when he came back, he found his mother lying dead in the house. He informed Haji Idan, who lodged report with the police. That after 4‑5 days the police came to uncle Idan and told him that IS he did not lodge the F.I.R. against him (appellant) he would be challaned in the case. The appellant has examined himself on oath and has stated as above. He denied the suggestion that he had murdered his mother because she did not pay him the money on his demand.

6. I have heard Mr. Mohammad Hayat Junejo, learned counsel for the appellant and Mr. Rasheed Tariq Khan, learned counsel for the State. I have also gone through the record pertaining to the case. The fact that the deceased was murdered is not disputed. The prosecution has examined Dr. Ghaus Ali Shah as Exh.21. He states that he conducted the post‑mortem examination of the deceased at 5‑30 p. m. on 9‑12‑1986 and found the following injuries on her person: ‑

"(1) Incised wound 20 c.m. x 8 c.m. x 8 c.m. on her back cutting the vertibral column, cutting the blood vessels and 4th and 5th ribs in transverse direction.

(2) Incised wound 8 c.m. x 6 c. m. x 4 c. m. on back of neck cutting the muscles and blood vessels of neck.

(3) Incised wound 8 c. m. x 4 c. m. x 4 c. m on right to injury No.2.

(4) Incised wound 6 c.m. x 4 c.m. x 4 c.m. on left injury No.2.

(5) Incised wound 8 c.m. x 4 c.m. x 6 c.m. on back of left ear.

The bone of left temporal region was sub‑laxated."

In his opinion Injury No.1 was individually sufficient to cause the death of the deceased in the ordinary course of nature.

7. As is clear from the above prosecution story, the incident is alleged to have been witnessed by four eye‑witnesses, who are very closely related to the deceased as well as the appellant. Out of these four eye‑witnesses only one namely, complainant Haji [do has partly supported the prosecution case, while the other three eye‑witnesses state that they did not see anybody causing injuries to the deceased. A but found her lying dead. The learned trial Court, however, has believed the evidence of Haji Ido on the ground that he was maternal uncle of the appellant and had no reason to falsely implicate him anti further that this evidence is corroborated by the recovery o blood‑stained hatchet on the pointation of the appellant and by hi' judicial confession.

8. Mr. Rasheed Tariq Khan has submitted that the Court has not only to see the quantity of the evidence but has to see the quality of the evidence and conviction can be based even on the solitary evidence of one witness. He has relied upon the case of Zulfiqar Ahmad v. The State P L D 1986 S C 477. In this case their Lordships have held as under:‑

"Of course, there are cases where the testimony of even a single witness has been relied upon for conviction of the accused but in each case it depends on various factors e.g., where the presence of the witness at the time of occurrence is natural; his statement is consistent, the version of incident given by him is natural; his charactor is above suspicion; he has stood the test of cross‑examination and his testimony is unimpeach able. The Courts have, however, emphasized, over and over again, the necessity of observance of well‑established rule of caution that where the testimony of an eye‑witness has been disbelieved with regard to some of the accused,‑‑ it can be used against the remaining accused only when some independent corroboratory evidence is available on the record to support their testimony qua those accused."

Applying the principle laid down by their Lordships in the above case it will be seen that the only witness Haji Ido is not a natural witness, but merely a chance witness. Admittedly his village is at a distance of seven miles from the scene of offence. He states that on the day of incident he was going to Sugar Mill, at Piarogoth and when he reached near the rice husking Mill, he alongwith his son Idris went to the Hotel for taking tea, where P.W. Photo was also sitting. He states that he saw from a distance of 50 paces that the appellant was causing hatchet injuries to the deceased, whereupon they went there, but the appellant ran away. He, therefore, went and filed the F. I. R. with the police. He has not given any reason as to for what purpose he was going to the Sugar Mills and further more he is not supported by the eye‑witnesses, who even according to him, were with him when he saw the incident and went to the scene of offence. His own son Haji Idris even goes further and states that his father did not see anybody giving hatchet blows to the deceased.

9. It is submitted by the learned counsel for the State that these eye‑witnesses have turned hostile because they were closely related to the appellant. The fact that they were closely related to the appellant was known to the prosecution as well as to the Investigating Officer, but neither these witnesses have been declared as hostile by the prosecution and cross‑examined for the purpose of eliciting truth, nor the Investigating Officer has taken precaution to have their statements recorded under section 164, Cr. P. C. during the course of investigation. Besides, it is admitted by Haji Ido that many persons were sitting at the Hotel when the incident took place. None of the other persons including the hotel‑keeper, who would have been independent witnesses have been examined by the Investigating Officer or by the prosecution in the Court.

10. Apart from this fact, even the evidence of this witness Haji Ido does not appear to be consistent with the F.I.R. which was the version given by him immediately after the incident. In the F.I.R. he has given the aforesaid motive for the murder, whereas in his deposition in the Court he does not say anything about the motive nor has he given any reason as to why the appellant committed the murder of his mother. The evidence of such a witness cannot be accepted on its face value without some independent corroboration.

11. In the case of Mohammad Sharif v. Attaur Rehman and 3 others 1972 S C M R 144, their Lordships have observed as under:‑

"It is the prosecution case that large number of persons had collected at the place of occurrence and they were kept at bay by the accused person firing at them indiscriminately. The failure on the part of the prosecution to produce single disinterested witness is a point that goes against the prosecution. In the absence, therefore, of any corroboration of the evidence of the said eye‑witnesses, it was not safe to place implicit reliance on their evidence."

In the case of Kajal Khan v. The State 1983 S C M R 130 their Lordship have held that Mit was highly unsafe to base conviction on the testimony of two chance eye‑witnesses without independent corroboration keeping in view the background of enmity between the parties".

12. Mr. Mohammad. Hayat Junejo, learned counsel for the appellant has relied upon the lease of, Nazir Mohammad alias Nazir Ahmad v. The State P L D 1974 Kr. 274 wherein a Division Bench of this Court has held as under: --

"There can be no general rule that the testimony of a witness having no apparent reason to falsely implicate an accused person should be accepted at its face value or that, conversely, the evidence of a person who is interested should be completely discarded. Indeed such an approach to the question of assessing the oral evidence of witnesses would be rather artificial and has been repeatedly disapproved by the superior Courts."

It was further observed that "the truth or falsity of the statement of the witness largely depends upon the circumstances which provide the guideline. To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief".

13. Next I come to the question of motive. A son will not kill his mother without a strong motive. In this context reference may bell made to the observations made by their Lordship of the Supreme Court in the case of Habibullah and others v. The State P L D 1969'

SC 127. Their Lordship observed as under: ‑

"In ordinary human conduct where killing takes place by design, it is not without a motive, strong or weak. This is not to say that murders are not committed wantonly without any motive, whatsoever. Motiveless murders do occur owing to mad or reckless acts of inhuman nature. Sometimes a motive lies mysteriously hidden in the mind of the killer with no means to dig it out on the surface. But it may be stated as a rule of prudence in judging human conduct that where a motive is alleged by the prosecution which is found to be false, it becomes all the more necessary to scrutinize the credentials of the witnesses who by their evidence direct or indirect speak about the guilt of accused person on the premises of a false motive. In the present case the alleged motive being absent and found to be untrue the Courts have been very much on their guard to accept the story of the prosecution of which the motive was an important constituent and which depended for its acceptance on the statement of a single witness who supported that story including the motive."

14. Mr. Mohammad Hayat Junejo, learned counsel for the appellant argued that real motive for the murder is being suppressed by the prosecution because no son is going to murder his mother for a petty amount of 88.50. Furthermore, if at all the appellant was provoked by the refusal of his mother to give him Rs.50 which he demanded in the morning, he would not have waited upto 2‑00 p.m. 1 to commit murder of his mother. Apart from this fact, the motive as alleged is not proved by the prosecution witnesses. The suggestion of motive in cross‑examination to the appellant is denied by him‑1 Even the learned trial Court has disbelieved the motive and the relevant observations of the learned trial Judge with respect to motive, may be reprodued as under: ‑

"However, I am skeptic about the truth of the motive because the number of the hatchet injuries on the person of deceased Mat. Mir Bibi discloses a fury in the accused which could hardly have been roused due to refusal by a mother to give a petty amount to his son, but I shall not go further to say what else could be the motive behind the incident."

15. It is submitted by Mr. Mohammad Hayat Junejo that the number of injuries, the manner in which the injuries were caused, indicate that there was a strong motive for murder which is being suppressed by the prosecution. It is further submitted that the deceased is alleged to have gone out of her house for cutting the grass, but neither grass nor sickle has been found from the scene of offence.

6. Now I refer to the evidence of recovery of blood‑stained hatchet on the pointation of the appellant. Apart from the fact that this hatchet was secured from the place which was net in exclusive possesison of the appellant, both the Mashirs of recovery namely, P.Ws. Mohammad Ali and Haji Kaniero have net supported the prosecution case and state that the appellant did net produce any hatchet in their presence. Mashir Mohammad Ali has been declare6 hostile by the prosecution, but nothing has been elicited in the cross‑examination of this witness by the prosecution, while other Mashir Haji Kandero has not been declared hostile by the prosecution and has not been cross‑examined by the prosecution.

17. It is submitted by Mr. Mohammad Hayat Junejo that the recovery is alleged to have been made after four days of the incident and in the meantime the appellant had enough time to wash the hatchet, therefore, the allegation that the hatchet was found blood‑stianed even after four days is not believable. He further submitted that the hatchet was recovered on 13‑12‑1986 and according to S.I.P. Mohammad Aslam the blood‑stained hatchet was sent to Chemical Analyser by the S.H.O. The Chemical Analyser's report (Exh.24) shows that it was sent to the Chemical Analyser vide letter of the S. H.O. dated 1‑4‑1987 through Head Constable Ghulam Haider and was received on 4‑4‑1987. It is submitted that neither the S.H.O. nor H.C. Ghulam Haider have been examined by the prosecution to show as to what happened to the hatchet during the intervening period of more than three months. It is submitted that such report of Expert loses its evidentiary value because of unexplained delay. Reliance is placed on a number of cases. In the case of Gulzar and others v. The State 1976 P Cr. L J 419 the blood‑stained recoveries were made on 21‑6‑1968, but these were sent to the Chemical Examiner on 17‑7‑1968. A Division Bench of Lahore High Court held that 'the effect of this delay would render the recoveries valueless'. In the case of Allahdino v. The State 1969 S C M R 714 their Lordship have observed as under: ‑

"The empty cartridges were secured and sealed in a parcel on the 19th January, 1966. The appellant's gun was seized and sealed in other parcel on the 28th January, 1966. These two parcels, according to the evidence of the ballistic expert, were received by him as late as the 12th May, 1966. No explanation was coming from the side of the prosecution as to why these parcels were sent about 4 months after the empty cartridges had been secured from the place of occurrence. Nor is there any explanation as to the place where and the manner in which those two parcels were kept during this long period. In this circumstance the evidence of the ballistic expert that one of the empties matched with the appellant's gun cannot be taken to be so strong a piece of evidence as to warrant the conviction of the appellant."

18. In view of the fact that the Mashirs do not support the recovery and the unexplained delay in sending the blood‑stained hatchet to the Chemical Examiner, this pieces of evidence, even if believed, is very weak piece of evidence and cannot be made basis of conviction without some independent corroborative evidence. Next I proceed to consider the judicial confession of the appellant which has been produced as Exh.20 and proved through Mr. Abdul Majeed, the then Resident Magistrate, Dadu (Exh.19). It may be pointed, that the appellant does not admit to have given this confession. This confession is a retracted confession. In this confession the appellant admits to have killed his mother because she did not give him Rs.50, but in other respect it does not support the prosecution case. The appellant does‑not state in his confession to have produced the hatchet before the police nor does he state that the incident was witnessed by anybody. He states that when he gave hatchet blows to the deceased, nobody was at the scene of offence and after about twenty minutes of death of the deceased some village people came and saw the deceased dead. He does not state that the complainant or other eye‑witnesses came and challenged him and he ran away. Mr. Mohammad Hayat Junejo has pointed that in his confession the appellant has stated that nobody else had joined him in this crime, nor did he commit murder at the instance of any person. He argued that this sentence indicates that the murder was committed by some other person for some other motive and the appellant has either voluntarily tried to shield the real culprit by inculpating himself or he was forced to give confession. He further contends that this confession has not been recorded in accordance with the legal requirements of law. It is admitted by the learned Magistrate that in the proforma of confession he has not mentioned that he told the accused that he was Resident Magistrate. He further admits that it is not written in this pro forma that the accused was kept in the court‑room or that the accused was asked whether he was maltreated or that he was remanded to judicial custody. The learned Resident Magistrate further states that he had sent the accused to judicial custody with his peon and 2‑3 Constables but it is admitted by S.I. Mohammad Aslam that the accused was handed over to him for taking him to judicial custody.

19. Mr. Mohammad Hayat Junejo has argued that while recording the judicial confession the learned Magistrate has not observed the procedure for recording such confession as laid down by the superior Courts from time to time. In support of his contention he has relied upon a Division Bench's decision of this Court in the case of Abdul Haleem v. The State 1984 P Cr. L J 611. In the reported case the learned Judges have considered the principles laid down in the cases of Sarwan Singh Ratan Singh v. State of Punjab P L D 1957 S C (Ind.) 558, Hakeem Gul v. The State P L D 1964 (W.P.) Pesh. 1, Dhani Bux v. The State PLD 1975 S C 187 and Dost Mohammad v. The State P L D 1982 Kar. 1000 and have summarised the procedure that the Magistrate has to follow while recording judicial confession of an accused person which may be reproduced as under:‑

"Courts must look for strict compliance of subsection (3) of section 164, Cr.P.C. before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who are charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that the procedure which is followed in recording confession is reiterated for their guidance. Magistrate would be well‑advised to follow the procedure which is given below: ‑

'As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the court‑room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock‑up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following question should be put to him:‑

(i) For how long have you been with Police?

(ii) Has any pressure been brought to bear upo11 you to make confession?

(iii) Have you been threatened to make confession?

(iv) Has any inducement been given by you?

(v) Why are you making this confession?

(vi) Have you been maltreated by Police?

After recording the accused's answers to the above questions, if the Magistrate is satisfied that he. is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim."

20. Applying the above principle in the instance case it will be seen that the learned Magistrate has not complied with the procedure which was to be followed before recording confession. In the said case it was further observed that "retracted confession is not to be acted upon and be made basis for conviction unless same is corroborated t in material particulars." It was further held that "where confession is silent about the recovery such recovery will not lend any corroboration to confession." I have already pointed that in confession the appellant does not admit to have produced the blood‑stained hatchet before the Police and the confession also does not disclose that the complainant or other witnesses saw him committing the offence as alleged in the prosecution story. Thus, the only ocular evidence against the appellant is of a chance witness, whose evidence does not get support from other witnesses, who were admittedly with him at the time of incident nor does it get support from the confession of the appellant. Such evidence cannot be relied upon unless it gets independent corroboration. In the case of Ismail Ahmad Peepadi v. Momin Bibi and others A I R 1941 Privy Council 11 their Lordship held that "though the 'chance witness' is not necessarily a faist witness, it is proverbially rash to rely upon such evidence".

21. The, prosecution has failed to prove the motive though alleged in the F.I.R. which, as pointed above, is disbelieved by the learned' trial Judge. In the case of Hakim Ali and others v. The State 19711 SCMR 432 their Lordship have observed as under:‑--

"It is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence. If the prosecution failed to establish the motive set up by it, as also failed in establishing that the incident occurred in the manner alleged by it then it is difficult to see as to what remained of the prosecution case."

22. Mr. Mohammad Hayat Juhejo learned counsel for the appellant has contended that the incident was an unwitnessed incident and in support has relied upon the evidence of three prosecution witnesses mentioned above, who state that they did not see any person giving hatchet blows to the deceased. He has also pointed to the discrepancy as to the time of death as given by the complainant and the Medical Officer. According to the complainant and F.I.R. the incident took place at 2‑00 p.m. According to the Medical Officer, he conducted the post‑mortem examination at 5‑30 p.m. and the death had occurred within 5‑6 hours. Thus, according to his evidence the death had occurred at any time after 11‑30 a.m.

23. The evidence with regard to recovery and judicial confession, as stated above, is also not free from doubt. All these pieces of evidence, if believed, are weak pieces of evidence and each by itself" is not sufficient or safe for convicting the appellant unless corroborate by some independent evidence. The question now arises whether these pieces of evidence can corroborate one another. Mr. Mohammad Hayat Junejo, learned counsel for the appellant has relied upon the case of Wazir and others v. The State P L D 1960 (W.P.) Kar. 674 wherein a Division Bench has held that "one piece of weak evidence, itself requiring corroboration, cannot be used as corroboration of another similar piece of weak evidence. It is highly unsafe, in fact dangerous, to base a conviction on an aggregation of such weak evidence",

24. Considering all the facts and law discussed above, in my opinion, the prosecution has failed to prove the guilt of the appellant beyond any reasonable doubt. I, therefore, give him benefit of doubt, allow this appeal, set aside the sentence and conviction awarded to him and acquit the appellant. The appellant is ordered to be released forthwith, if not otherwise required. The fine, if paid by him, may be refunded to him.

The appeal was allowed by a short order and the above are the reasons in support of that order.

M. Y. H. IM‑391/K. Appeal allowed.