ALI AKBAR Versus THE STATE

1. Appellant Ali Akbar son of Haji Karnani was tried by the learned Sessions Judge, Thatta on charge under section 302, P.P.C., in that, he, on 1-2-1990, committed the murder of Muhammad son of Muhammad Usman Mirbahar in his house situated in the town of Thatta. By judgment, dated 2-2-1994 the learned trial Court found the appellant guilty of the said charge, convicted and sentenced him to undergo imprisonment for life and fine of Rs.10,000 and in default to undergo further R.I. for 6 months. The appellant is also directed to pay Rs.20,000 as compensation to the heirs of the deceased under section 544-A of Cr.P.C. and in default to suffer further R.I. for 6 months. The appellant has challenged his conviction and sentence through this appeal.

2. On 1-2-1990 at 5-30 p.m. complainant Zakrio appeared at Police Station Thatta and lodged F.I.R. No.14 of 1990 under sections 302, 504, P.P.C. and stated that he and his brother Muhammad Ilyas worked at the lands while their brother Muhammad (deceased) worked on a radio shop in the Town of Thatta. The complainant further stated that his maternal-uncle Haji also resided in the town of Thatta and at times when Muhammad got late from work on the radio shop, he stayed in the house of his maternal-uncle Haji. It was further stated that the appellant who is elder son of Haji had tried to take liberty with Mst. Pathani and also committed theft of a golden ring of deceased Muhammad. On this account the appellant was restrained from coming to the house of Haji. On the day of incident, the complainant, his brother Ilyas and father-in-law Haji came from their village to the Town of Thatta and went to the shop where his brother Muhammad worked. There they came to know that Muhammad was taken by appellant Ali Akbar to his house. The complainant alongwith others then came to the house of Ali Akbar where they saw him abusing the deceased Muhammad and then firing at him with his single barrel gun. The appellant then left the gun at the Wardat and ran away. Leaving the witnesses Ilyas and Haji at the dead body the complainant went to his Nekmard Hashim Pareecho, narrated the incident to him, on whose advice lodged the F.I.R

3. A.S.-I. Khair Muhammad incharge Police Station Thatta after recording the F.I.R. went to the place of Wardat inside the house of appellant and prepared inquest report, Mashirnama of Wardat and despatched the dead body to Civil Hospital, Thatta for post-mortem examination. He then recorded the statements of witnesses Haji Muhammad Ilyas, Mst. Pathani and Hashim. On the same day he arrested appellant from Amri Bus Stop. On 4-2-1990 gun used by the accused was recovered .by the Investigating Officer at his pointing. After necessary investigation challan was submitted before the Court for his trial.

4. On 30-3-1991 charge (Exh.4) was framed against the appellant under section 302, P.P.C. to which he pleaded not guilty and claimed trial.

5. Prosecution examined P.W.1 Dr. Muhammad Rahim (Exh.7), Medical Officer, Civil Hospital, Thatta, who conducted the post-mortem examination on the dead body of Muhammad and produced post-mortem report (Exh.P.1). P. W. complainant Zakrio (Exh.8) who produced the F.I.R. (Exh.P.2), P.W.3 Haji (Exh.9) who produced his 164, Cr.P.C. (Exh.P.3), P.W.4 Ilyas (Exh.10) was produced his 164, Cr.P.C. statement (Exh.P.4), P.W.5 Muhammad Ramzan (Exh.11) a Mashir to the Mashirnamas (Exhs.P.5 to P.10) but this witness did not support the prosecution case and was declared hostile and cross-examined by, the D.P.P. He filed his affidavit dated 15-7-1990 sworn before a Commissioner for taking oaths in which it was stated by him that the Mashirnamas of which he is shown as one of the Mashirs, were prepared by the police at the police station and his signatures were obtained there but not at the relevant places and time shown in various Mashirnamas. Prosecution then examined P.W.6 Pirdino, the second Mashir (Exh.15) but he too did not support the prosecution and was declared hostile and cross-examined by D.P.P. P.W.7 examined by the prosecution is A.S.-I. Khair Muhammad who had registered the F.I.R. and prepared various Mashirnamas which were already brought on record and he testified that the same were true. Through this witness prosecution produced the report, of the Chemical Analyser (Exh.P.12) and the report of the Ballistic Expert (Exh.P.13). Under statement (Exh.17) the prosecution closed side.

6. In section 342, Cr.P.C. appellant denied the denied having committed the murder of Muhammad gun or the empty cartridge before the police. He further enmity between him and the complainant party over matrimonial affairs due to which reasons he was implicated. He denied having ever committed the theft of a ring belonging to the deceased Muhammad or having been given a slap on that account by the deceased. Accused neither examined himself on oath under section 340(2) of Cr.P.C. nor led any defence. On conclusion of trial, through the impugned judgment the appellant is convicted as stated above.

7. I have heard the learned counsel for the parties and perused the entire record. The evidence in the case consists of ocular testimony furnished by P.W. Zakiro, P.W.3 Haji and P.W.4 Ilyas. The supporting evidence in the nature of circumstantial evidence is the recovery of a gun and a cartridge at the pointing of the accused, the medical evidence and motive.

8. Contention of the learned counsel for the appellant is that in the circumstances where complainant Zakrio is the brother of the deceased, P.W. Haji is the father-in-law of the complainant and P.W. Ilyas is the brother of the deceased, in absence of any corroboratory evidence of independent witnesses, whether it would be safe to place implicit reliance on such evidence, for the purpose of recording conviction or for sustaining the same. The next contention of the Darned counsel is that whether the appellant had really had the motive to kill deceased Muhammad, and if yes, whether it could be treated as corroboratory evidence in the circumstances of the case. As to the recovery of a gun and cartridge from the, appellant at his pointing, it has been argued that such has been disbelieved by the, learned trial Court 7for valid reasons. It has been further contended that the complainant as also the witnesses have made exaggeration during their evidence before the trial Court and introduced a new version that on the day of occurrence, complainant's mother was ill and was brought to the town of Thatta to some doctor and because they needed some money for the purpose, they went to the shop where deceased Muhammad worked to take money from him, when they came to know that Muhammad was taken away by the appellant to his house. This story, according to the learned counsel, was neither given in the F.I.R. nor by the witnesses in their police statements. According to the learned counsel the 3 eye-witnesses are residents of place at a distance from 6 miles from Thatta and to give a natural colour to their probable presence at the Wardat, they engineered a story of illness of complainant's mother and they would not be anything more than the chance witnesses and that too if the story given by them at the trial is accepted as true.

9. According to the learned counsel it was a case not free from doubt and the appellant was entitled to acquittal on that account. Learned counsel referred to the case of Nazir Muhammad alias Nazir Ahmed v. The State PLD 1974 Kar. 274 where it was 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. In the said case it was also observed that where motive for crime is suggested but subsequently abandoned at the trial, the Courts should be very much on their guard to accept the story of the prosecution and scrutinize credentials of prosecution witnesses. Learned counsel also referred to the case of Muhammad Sadiq v. Muhammad Sarwar and 2 others 1979 SCMR 214 where, while dealing with the evidence of a hostile witness the Supreme Court observed that the primary question, however, is not whether a witness is hostile witness or a disinterested witness, but whether such witness is an honest witness or a dishonest witness. It was further observed, that even the hostile witness may speak truth while a totally disinterested witness may be bribed or pressurized into giving false evidence. It was held that the test of veracity was a rule of thumb method for ascertaining veracity of witness.

10. Mr. S. Amjad Ali Shah learned A.A.-G. has supported the conviction and sentence and has argued that the 3 eye-witnesses have fully supported the prosecution case which is further corroborated by the medical evidence as also the circumstantial evidence in the nature of recoveries made by the police at the pointing of the appellant. He has contended that the rule of appreciation of evidence is judged evidence from its inspiring worth and if such be confidence inspiring,, it does not require to be rejected for it has come through the related or interested witnesses. According to the learned A.A.-G. the evidence of motive has also been proved by the complainant Zakrio and P.W. Ilyas. According to him the prosecution had proved its case beyond all reasonable doubts and no interference with the impugned judgment is called for. He referred to the cases of Ziaullah v. The State 1993 SCMR 115, Habibur Rehman v. The State 1992 SCMR 1625, Muhammad Riaz v. The State 1993 PCr.LJ 1174, Muhammad Boota v. The State 1993 PCr.LJ 2106 and Ikramullah alias Zafar v. The State 1993 PCr.LJ 2273 in support of his instructions.

11. I have gone through the entire evidence and considered the contentions raised by the learned counsel.

12. The complainant for the first time introduced a story before the trial Court that because of the illness of his mother she was brought to the town of Thatta by him and by the witnesses Haji and Ilyas. This version was neither given by the complainant in the F.I.R. nor by witnesses in their police statements. The witnesses including the complainant reside at a distance of 6 miles from the place of Wardat and they are more or less chance witnesses. Their evidence could have been accepted if it had been consistent with the version given at the earliest in the F.I.R. as well as in the police statements. There are innumerable improvements made by the three witnesses who have furnished the ocular testimony and their such evidence needed strong independent corroboration which has not come forth.

13. It is in evidence that on the fire-arm report and cries raised, many people of the Mohalla were gathered but none has either been examined or even cited as a witness in the challan.

14. There is another reason also for not accepting the version of the prosecution and that is that the story as given in the F.I.R. is, that after having fired at the deceased Muhammad, the appellant left his gun at the Wardat and fled therefrom. This is borne out by the F.I.R. as also the statements of the witnesses recorded during investigation and so also before the Magistrate under section 164, Cr.P.C. As against the case set up by the prosecution at the earliest, it is subsequently introduced during evidence that on 4-2-1990 a gun and cartridge allegedly used in the commission of the offence was recovered by the police at the pointing of the accused. This was factually incorrect and introduction of such theory tantamounts to negate the effect of the correctness or trustworthiness of the prosecution case. The report of the Ballistic Expert therefore, would render no support to the prosecution evidence, for the gun was neither produced by the appellant nor could it be said to have been the crime weapon.

15. As to the motive in the case, as urged by prosecution, there is a word given by the complainant but not supported by the witness P.W. Haji, the father-in-law, who stated that he did not know about any enmity between the accused and the deceased. The evidence in respect of the motive is not only weak, far-fetched but in the circumstances of the case, it renders no corroboration to the ocular testimony.

16. I have gone through the evidence of the Medical Officer who conducted the post-mortem examination and have also perused the post-mortem report (Exh.P.1). The Medical Officer admits that there are number of additions and alterations made in the post-mortem report but as to who made such interrogations, he could not name. The post-mortem report further shows that the Medical Officer commenced post-mortem examination at 5-00 p.m. when according to the evidence of A.S.-I. Khair Muhammad, he reached at Wardat at 5-40 p.m. and saw the dead body lying still at the Wardat: He also stated that he prepared the inquest report as also the Mashirnama of injuries on the dead body at that time. It is again not in line with the prosecution case according to which, the dead body of the deceased Muhammad was removed to the hospital at about 3-30 p.m.

17. The mere relationship of the witnesses in a case would not render their evidence unworthy of reliance but the moot point is whether evidence coming from such related and partisan witnesses which is not free from taint and consists of innumerable improvements could be relied upon without independent corroboration. As pointed out earlier the ocular account is given by witnesses, who, in my view, besides being closely related to the deceased are chance witnesses being residents of a place 6 miles away from the Wardat. Their presence at the time of occurrence is unnatural and looking to the intrinsic worth of their evidence, one could safely conclude that such evidence could not be made basis of recording conviction on a capital charge unless it gets due corroboration from other source. The evidence regarding motive is scanty which again provides no corroboration to the ocular testimony. The medical evidence negates the prosecution version, the post-mortem report being full of interpolations made by some one and even the original post ?mortem report not produced but its carbon copy filed. The accused has a right in law to take any defence but the basic rule is that prosecution has to prove its case beyond reasonable doubt and it is not for the accused to prove his innocence.

18. The upshot of the above discussion is that the case against the appellant was not proved beyond reasonable doubt and the conviction and sentence awarded by the learned trial Court in the circumstances cannot be sustained. I accordingly accept this appeal, set aside the conviction and sentence and acquit the appellant. These are, the reasons for the short order, dated 8-6-1994.

19. N.H.Q./A-1573/K ?????????????????????????????????????????????????????? Appeal accepted.