DILBAR Versus THE STATE
1. Appellant Dibar son of Bhaledino Nahiyoon was tried alongwith acquitted accused Bachal Nahiyoon by the Sessions Judge, Thatta for offence under sections 452, 302 read with section 34 of P.P.C., in that, on 22-1-1990 both accused entered into the house of deceased Muhammad Hassan in village Pir Jo Goth, Fluka Thattla at about 2-30 a.m. and committed the murder of Muhammad Hassan. Appellant Dilbar who was allegedly armed with revolver fired at the deceased resulting into his death, while co-accused Bachal armed with a hatchet stood outside the house in a lane. The learned Sessions Judge, by his judgment, dated 6-2-1994, acquitted accused Bachal, giving him benefit of doubt, and convicted appellant under section 302, P.P.C. and sentenced him to imprisonment for life and to pay fine of Rs.10,000 or in default to undergo R.I. for six months more. The appellant is further directed to pay Rs.20,000 as compensation under section 544-A of 6r.P.C. to the heirs of the deceased and in default to suffer further R.I. six months. The appellant is however, allowed benefit of section 382-B of Cr.P.C. This appeal is directed against the said judgment, dated 6-2-1994.
2. The facts of the case are, that on 22-1-1990, complainant Jumo Malah appeared at Police Station Thatta and lodged F.I.R. No.8/90, which was registered under sections 302, 452 and 34, P.P.C. It was stated by the complainant, that he had married the sister of deceased Muhammad Hassan and in exchange his own sister Mst. Saran was married to Muhammad Hassan, who had 3 sons from Mst. Saran. He stated that accused Dilbar and Bachal used to come and stand at the nearby canal where the family folk went to fetch water. For appellant Dilbar it was stated that he used to tease the womenfolk. The matter was reported to the relatives of accused Dilbar namely Haji, Khalid, Usman, Muhammad Ali and others. Accused Dilbar was also restrained from behaving in that manner but he did not desist. It was further stated that as and when Mst. Saran went either to fetch water or for cutting grass, appellant Dilbar used to tease her. Deceased Muhammad Hassan and appellant Dilbar on this account had some altercation and appellant Dilbar used to say that he would commit murder of Muhammad Hassan. As to the actual incident of the case, it was stated by complainant that on that night, he alongwith deceased Muhammad Hassan and Ramoo went to sleep inside the house and a lantern was burning. At 2-30 hours complainant was awakened on some noise and so also deceased Muhammad Hassan and Ramoo. On the light of lantern they saw accused Dilbar armed with a revolver and accused Bachal armed with hatchet standing. The accused were challenged, upon which appellant Dilbar fired at Muhammad Hassan hitting him on the chest and Muhammad Hassan fell down. On the fire-arm report and the noise raised, Ahmed, Siddiq and some others came running and seeing the witnesses approaching the accused fled from the Wardat, firing in the air. Muhammad Hassan had succumbed to the injuries. Leaving the' witnesses over the dead body the complainant went and lodged the above report.
3. A.S.I. Muhammad Maroof took up the investigation, inspected the Wardat, prepared inquest report of the dead body and recorded statements of some of the witnesses whereafter he handed over the case papers to S.H.O. Shahid Hamid who conducted further investigation. Both accused were arrested by the S.H.O. on 25-2-1990, who are said to have led the police and Mashirs to their house on 3-3-1990, where appellant Dilbar produced a revolver while accused Bachal produced a hatchet. Because the appellant had no licence for the revolver, a separate case under the Arms Ordinance was also registered against him. During investigation, 164, Cr.P.C. statements of P.W. Mst. Saran wife of the deceased and P.W. Ramoo were recorded by the Mukhtiarkar and F.C.M., Thatta. The case was sent up against the two accused for their trial.
4. On 3-1-1991 charge was framed by the learned trial Court against both the accused under sections 452, 302 read with section 34, P.P.C. to which they pleaded not guilty.
5. Prosecution examined P.W.1 complainant Jumo (Exh.10) who produced F.I.R. (Exh. P.1), P.W.2 Mst. Saran wife of the deceased (Exh.11) who produced her 164, Cr.P.C. statement (Exh.P./2), P.W.3 Dr. Munir Ahmed (Exh.12) who produced post-mortem report (Exh.P./3), P.W.4 Muhammad Ameen Tapedar (Exh.13) who produced sketch of Wardat prepared by him (Exh.P./4), P.W.5 Ramoo who produced his 164, Cr.P.C. statement (Exh.P./5), P.W.6 Muhammad Moosa, a Mashir who produced memo. 'of injuries on deceased (Exh.P./6) memo. of the dead body (Exh.P./7), inquest report (Exh.P./8), memo. of Wardat (Exh.P./9) and memo. of arrest of accused (Exh.P./10), P.W.7 Talib the other Mashir (Exh.18), who produced Mashirnama of recovery at the printing of the accused (Exh.P./11), P.W.8 A.S.I. Muhammad Maroof who had partly conducted the investigation (Exh.9) and he produced Mashirnama of the clothes of deceased (Exh.P./12) and P.W.9 S.H.O. Shahid Hamid, who produced report of the Chemical Analyser in respect of the clothes of the deceased (Exh.P./13). Under statement (Exh.21) the prosecution closed its side.
6. In their statements under section 342, Cr.P.C. both the accused denied having trespassed into the house of deceased Muhammad Hassan or having committed the murder. Appellant Dilbar stated that there was enmity between him and the complainant party since one year prior to the case. He stated that a theft took place in the shop of complainant prior to the incident and in that case the complainant had shown his cousin Haji as the accused. He also stated that he had removed one Piroo working with him as a Kamdar and said Piroo was the cousin of deceased. He also stated that he was a Zamindar and Nekmard of the village and on the following day of the incident a party for tracking the foot?prints was arranged by him and he was present alongwith the trackers and others when the police arrested and involved him in the case. He denied if he had ever teased the womenfolk of the complainant party or that he was reprimanded. Accused Bachal, however, stated that co-accused Dilbar is his cousin and because of such relationship and the enmity between the complainant and the said accused, he has also been involved in the case. Both the accused neither examined themselves as their own defence witnesses under section 340(2) of Cr.P.C. nor led any defence. On conclusion of trial, the learned trial Court through the impugned judgment acquitted accused Bachal while convicted appellant Dilbar as stated above.
7. I have heard the learned counsel for the appellant and Mr. Habibur Rasheed for the State. The contentions raised on behalf of the appellant are, that the source of identification was the light of the lantern, which was neither secured during investigation nor its mention is made in the memo. of Wardat; that the witnesses attracted on the fire report as also the cries, could not have identified the culprits as the lantern even if found burning would not have given that much light as to make it possible for outsiders coming in the house of the deceased to identify the culprits; that there is no sufficient evidence with regard to the motive, rather it is falsified by P.W. Juman; that the arrest of the 2 accused which is shown by the prosecution as on 25-2-1990 i.e. after more than one month of the incident, has been falsified by the complainant and Mst. Saran who have stated that the accused were arrested on the same day in the evening; that from the fact that prosecution has introduced the theory of tracking foot?prints of the culprits would suggest that the culprits were not known or at least not identified; that the name of Mst. Saran was not mentioned in the F.I.R. and the police did not record her 161, Cr.P.C. statement even, although her 164, Cr.P.C. was recorded by the Magistrate after more than one month of the occurrence; that Talib and Siddiq are said to have been attracted and they had witnessed the incident, of whom Siddiq is not examined whereas Talib is made a Mashir but he has not supported the prosecution case and was declared hostile; ,that the evidence led by the prosecution came from interested and partisan witnesses which has not been corroborated by any independent witness; that the evidence in respect of recovery of a revolver from the appellant and hatchet from the acquitted accused Bachal has been disbelieved by. the learned trial Court; that common intention of acquitted accused Bachal is disbelieved by the learned trial Court as the evidence against him was found not reliable and confidence inspiring; that the revolver recovered from the appellant Dilbar was not sent to the Ballistic Expert; that on same evidence when Bachal is acquitted, benefit of doubt should have been given to the appellant. In support of all these contentions the learned Advocate referred to the cases of:--
(i) ???????? Ahmed and others v. The State 1982 SCMR 1049;
(ii) ?????? Abdul Ghafoor v. The State 1982 SCMR 162;
(iii) ????? Rehmat and others v. The State PLD 1959 SC 109;
(iv) ????? Khalid Hussain and others v. The State 1989 PCr.LJ 772;
(v) ?????? Nawal and another v. The State 1979 PCr.LJ 736.
8. In the case of Ahmed and others 1982 SCMR 1049 it was observed that where the testimony of the witnesses is found to be at variance in so far as they implicated the accused, their testimony required independent corroboration and the corroboration had to be looked for and found not only in case of interested witnesses but also where the ocular testimony by itself is not so sound and doubt-free as to independently suffice for conviction of accused. In the case of Abdul Ghafoor 1982 SCMR 162 it was observed that where the evidence of prosecution witnesses was held to be tainted and not believable by the lower Court in regard to acquitted accused, it was held that the appellant in the circumstances was entitled to benefit of doubt and he was acquitted. In the case of Rehmat and others PLD 1959 SC 109 it was observed by the Supreme Court that where there were grave doubts affecting entire prosecution evidence, ocular evidence was subject to general doubts and the conviction of accused relying on rule of "specific part" assigned to some of several accused by the eye-witnesses, was not consistent with safe administration of justice. It was observed that the High Court omitted to consider possibility of implication of innocent persons and all accused were acquitted. In the case of Khalid Hussain 1989 PCr.LJ 772 it was observed that burden of proof in a criminal trial is always on the prosecution and it is not accused who was to prove his innocence and the accused was always at liberty to take any type of defence. In the case of Nawab and others 1979 PCr.LJ 736 the ocular evidence was found inconsistent with the medical evidence, the identification of accused was extremely doubtful, judicial confession was discarded being irregular and motive for offence was held could not provide corroboration to other pieces of evidence howsoever strong, the accused were given benefit of doubt and acquitted.
9. Learned counsel appearing for the State has not supported the conviction and he states that case against the appellant was not proved beyond reasonable doubt.
10. I have gone through the entire evidence on record and have also considered the contentions raised by the learned counsel.
11. The evidence led at the trial consisted of ocular testimony, furnished by the complainant Jumo, P.Ws. Mst. Saran and Ramoo. There is medical evidence, which according to the prosecution corroborated the ocular testimony, the recovery of incriminating articles from the accused and lastly the motive. Referring first to the ocular testimony it may be observed that complainant Jumo is the cousin and brother-in-law of the deceased and also that sister of the deceased was in exchange married to complainant P.W. Mst. Saran is the sister of the complainant and the other witness who is said to have seen the occurrence is Ramoo who is brother of the deceased. The other witnesses, namely, Ahmed, Siddiq and Talib who were attracted on the cries and are said to have witnessed the occurrence have not been examined except Talib who was made a Mashir. The name of Mst. Saran was not given by the complainant in the F.I.R. to have either been present during the night of occurrence or to have seen the occurrence. In so far as the other witness Ramoo is concerned, he stated that on reaching the house of the complainant he saw accused Dilbar armed with revolver and accused Bachal armed with hatchet. He introduced new version saying that the accused Dilbar fired at him also saying that he should not come near but he escaped. Such disclosure was not made by him either in his police statement or statement before a Magistrate which fact has duly been proved. He admittedly resided in a house, which is said to have been adjoining to the house, where incident took place. He was attracted only after having heard the fire shot reports and the cries from the house of deceased. By the time he reached, the assailants must either have made their escape good or may have been leaving the house and from the evidence of P.W. Ramoo it appears that the source of identification was against the light of the lantern which I doubt would be available for this witness to distinctly see the culprits.
12. Mst. Saran who is the wife of the deceased was not examined by the police although during evidence she stated that the police had recorded her statement. The two Police Officers examined have categorically stated that Mst. Saran was not examined by them. May be that she had not seen the occurrence, wherefor, her name was not given in the F.I.R. and was not willing to make a false statement before the police that she had witnessed the occurrence. Her 164, Cr.P.C. statement was recorded after more than one month of the occurrence. If the evidence of the complainant Jumo and Mst. Saran is believed to be true, it will have to be accepted that appellant Dilbar was arrested by the police on the same day evening. The prosecution case would thus stand belied in which it has come on record that both accused were arrested on 25-2-1990, the date of incident being 22-1-1990. Either the complainant and Mst. Saran have given false version about the date of arrest of appellant, or having really been arrested on the same day, the Investigating Officer has falsely shown the arrest of both accused on 25-2-1990 with some ulterior motive. This circumstance has gone unresolved and no explanation came from the prosecution side as to how all this happened. The ocular testimony thus came from not only closely related, interested, and partisan witnesses but even not corroborated by independent witnesses. The intrinsic worth of the ocular testimony is not of that quality that it could be relied upon without independent corroboration.
13. The medical evidence lends no support to the ocular testimony for one simple reason that post-mortem report shows at a number of places over-writings which the Medical Officer admits to be visible but not done by him. This would mean that some hand other than that of the Medical Officer was actively working during the preparation of the post-mortem report. Even the original post-mortem report has not been produced but a carbon copy retained by the doctor is produced, causing further doubt as to its genuineness. The injury on the body of the deceased Muhammad Hassan is corroborated by the post-mortem examination report but as pointed out earlier the report by itself is doubtful for the reasons abovementioned.
14. The evidence of recovery is discarded by the learned trial Court for very valid reasons. On the point of arrest of accused Dilbar from 103 Mori as alleged by the prosecution, it is refuted by Mashir Muhammad Moosa who has stated that accused Dilbar was arrested from the hotel of Usman Nahiyoon while accused Bachal was arrested at Police Station where he was brought by Khalid Nahiyoon. He categorically stated that it was wrongly mentioned in the Mashirnama of arrest that accused Dilbar was arrested from 193 Mori Bridge. Mashir Talib did not support the prosecution and he was declared hostile. When the evidence led by the prosecution on the point of arrest of both accused become doubtful, any recovery consequent upon such arrest had to -be disbelieved which the trial Court has rightly done.
15. The evidence of motive is weak and it has not come through any independent source. It is the prosecution case that since appellant Dilbar teased Mst. Saran and followed her whenever she went to fetch water or for cutting grass, complaints were made to the Nekmards but none has been examined. Both Mst. Saran and complainant Jumo have made improvements upon their statements either in the F.I.R. or in 164, Cr.P.C. statements and the evidence of such witnesses cannot be said to be either trustworthy or confidence inspiring.
16. The upshot of the above discussion is that the ocular testimony was neither independent or reliable nor free from doubt, the medical evidence created doubts because of various overwritings in the post-mortem report, the evidence of recovery having rightly been discarded by the trial Court and the motive being far-fetched and very weak, one of the accused on same evidence having been acquitted, the conviction against the appellant could not be sustained. The appeal is, therefore, accepted, the conviction and sentence awarded to the appellant is set aside and he is acquitted. Appellant shall be released forthwith unless required in some other case.
17. N.H.Q./D-137/K ??????????????????????????????????????????????????????????????????????????????? Appeal accepted.