MUHAMMAD SULEMAN CHANDA Versus THE STATE

1. Appellant Muhammad Suleman Chanda son of Muhammad Ibrahim was tried by the learned 1st Additional Sessions Judge, Central Karachi who by his judgment, dated 26-5-1993 convicted the appellant under section 302, P.P.C. and sentenced him to suffer imprisonment for fife and fine of Rs.20,000 in default of payment of fine to suffer R.I. for six months more. The appellant has challenged his said conviction and sentence under this appeal.

2. The case of the prosecution is that complainant Muhammad Masood Merchant, Manager of Muslim Commercial Bank, Gol Market Branch, Nazimabad lodged report on 30-10-1992 at Police Station Nazimabad in which he stated that deceased Syed Waheed Hussain and so also the appellant were employed in the Bank as Accountant and Peon respectively. On the day of incident he alongwith Ansar Hussain and Pervez Ahmed were taking food in the locker room when at about 1-45 p.m. there was hue and cry in the Bank on account of which they came out of the locker room. In the hall of the Bank he saw the present appellant with a blood-stained knife in his hand. Chowkidar Taj Gul told him that Syed Waheed Hussain had received injuries and he was in the shop of the tailor master outside the bank. He alongwith tailor master Shujauddin removed the injured in a Rickshaw but subsequently Syed Waheed Hussain expired. He then lodged the report. The said report was recorded by S.H.O. Chaudhry Abdul Hameed at the hospital as Exh.8 and thereafter it was transcribed in the F.I.R. book as Exh.37. During investigation he arrested the present appellant on 31-10-1982 and secured blood-stained knife on the pointation of the accused and submitted the challan.

3. At the trial the prosecution examined P.W.1 Muhammad Masood Merchant, complainant; P.W.2 Syed Nisar Hussain; P.W.3 Pervez Ahmed; P.W.4 S.M. Saleh, P.W.5 Ahsanullah, P.W.6 Muhammad Ali and P.W.7 S.H.O. Ch. Abdul Hameed. Thereafter the statement of the appellant was recorded under section 342, Cr.P.C. in which he claimed that he has been falsely implicated in this case. The appellant did not wish to be examined on oath but he examined one defence witness D.W.1 Muhammad Iqbal. After the conclusion of the trial the appellant was convicted and sentenced by the trial Court as already mentioned hereinabove.

4. I have heard Mr. MA. Kazi learned counsel for appellant and Mr. Raja M. Irshad, Additional A: G. The latter has not supported the conviction and sentence awarded to the appellant for good reasons.

5. Both the learned counsel have pointed out that in the present case there is no eye=witness at all and the only evidence against the appellant is that he was found in the bank with a blood-stained knife in his hand. Mr. Kazi has further pointed out that no evidence whatsoever has come on record to show who actually caused injury to the deceased Syed Waheed Hussain and whether it was caused inside the bank or outside the bank. It was also submitted by the learned counsel that if the appellant was to be convicted on circumstantial evidence, in that event, the said circumstantial evidence must be in capable of being explained on any other hypothesis. The learned Additional Advocate -General has very fairly submitted that it is a case of no evidence and in fact even the Chemical Examiner's report has been suppressed while the material witnesses namely tailor master Shujauddin has not been examined in this case.

6. I have carefully considered the points raised by the learned counsel and I have also gone through the evidence available on record. It is an admitted position that there is no eye-witness in this case and the conviction of the appellant has been recorded only on account of the fact that he was seen having a blood-stained knife in his hand while he was standing in the hall of the bank. The witnesses examined in this case have not mentioned at all as to whether the deceased was caused injury inside the bank or outside the bank. According to the complainant when he came out of the locker room he had seen the accused standing in the hall having a blood-stained knife in his hand. He has further stated that the injured was in the adjacent tailor shop from where he removed him to the hospital accompanied by tailor master Shujauddin. P.W.2, Syed Nasir Hussain is an office employee in the same bank, in his evidence he has stated that he did not see the accused causing injury to the deceased but he had only seen him in the bank when he came out of the locker room after hearing the cries. P.W.3 Pervez Ahmed is also an employee of the bank, he was taking meals with the complainant. When he came out he had also seen the appellant was present and other persons of the branch were also there. At that time, the appellant had a blood-stained Chhuri in his hand. This version given by him is an improvement as he had admitted in his cross -examination that he had not stated these facts before the police in his 161, Cr.P.C. statement. P.W.4 S.M. Saleh Jaffery has been examined in place of Medical Officer Dr. Muhammad Nafeez who could not be found. He has produced the medico-legal certificate and the post-mortem report. The post- mortem report indicates that deceased had received one incised wound on the left side of abdomen. P.W.5 Ahsanullah is Tapedar who had prepared the sketch of the place of incident. P.W.6 Muhammad Ali is a Mashir in respect of the arrest of the accused. The police had also secured the clothes of the accused in his presence and P.W.7 is S.H.O. Ch. Abdul Hameed who has narrated the facts relating to the investigation of the case. However, he could not produce the Chemical Examiner's report as according to him it was not available on record. This being the sum total of the evidence, it is obvious that as the appellant was found, standing in the hall of the bank with a blood stained knife in his hand, an inference has been drawn that he has committed this offence. It may be mentioned that the knife recovered on the pointation of the appellant cannot be said to be blood-stained as there is no Chemical Examiner's report to indicate the same. In other words it means the appellant was found having a knife in his hand. By any stretch of imaginations this by itself will not be sufficient to connect the appellant with the commission of this offence. This fact by itself does not lead to the only conclusion that the appellant had committed this offence as there is another possibility also which is equally plausible that is, it is quite possible that the appellant might be having a knife in his hand at that time which perhaps he may have picked up from the floor or it may even be belonging to him. Being found in possession of a knife could not lead to the inference that it was the appellant alone who had killed the deceased. In a case falling under section 302, P.P.C. the prosecution must prove its case by cogent and unimpeachable evidence. As already mentioned, in the present case there is no ocular account while two pieces of material evidence have been suppressed. Firstly, tailor master shujauddin has not been examined in this case and it is quite possible that the deceased might have disclosed to him the name of the culprit. The other piece, the Chemical Examiner's Report, which surprisingly is not available and there is no explanation as to why it is missing. Taking into consideration all these circumstances, I have no hesitation in my mind that the prosecution has miserably failed to prove its case against the appellant.

7. In the light of my above discussion I allow this appeal and set aside the conviction and sentence awarded to the appellant. The appellant is in custody, I he is to be released forthwith if not required in any other case.

8. By a short order, dated 31-10-1993 this appeal was allowed, these are the reasons for the same.

9. N.H.Q./M-1897/K Appeal allowed.