HAFEEZULLAH KHAN Versus STATE

1. This judgment will `dispose of Criminal Jail Appeal'No.2 of 1999 filed by appellant Muhammad Ramzan who was convicted by the learned Additional Sessions Judge VI, Larkana on 26-1-1999. and sentenced to imprisonment for life besides payment of fine of Rs.25,000 or in default thereof to undergo R.I. for two years =more, for allegedly causing death .of Muhammad Siddiq by means of hatchet.

2. The F.I.R. of this case was recorded as Crime Number 25 of 1988 at Police Station Qambar on the narration of Nizamuddin, the father of the deceased, at about 9-45 a.m. i.e. within 15 minutes of the incident which allegedly took place at 9-30 a.m. The complainant in his F.I.R. stated that on 21-2-1988 while he, his deceased son Muhammad Siddiq and P.Ws. Muhammad Yakoob and Fateh Muhammad after finishing work at Qambar Town started back for their village on the donkey cart and when at about 9-30 a.m. they reached near old bus stand, they came across the appellant who being armed with hatchet challenged them and by causing successive hatchet injuries to the deceased killed him instantly, proclaiming to have taken revenge of the murder of his cousin Bachoo.

3. The aforesaid F.I.R. was recorded by A.S.-I. Badar Ali who thereafter took up the investigation. He proceeded to the place of incident, took in possession the dead body, secured blood-stained earth and prepared the inquest report. He then arrested the appellant and recovered from him the crime weapon viz hatchet and then examined the witnesses under section 161,.Cr.P.C. and produced the appellant before Mukthiarkar and F.C.M. Qambar where his confession was recorded and thereafter the appellant was sent up to the Court of law to stand trial.

4. The appellant was accordingly tried. He pleaded not guilty to the charge framed against him whereafter the prosecution adduced its evidence. The prosecution examined in, all seven witnesses namely P. W. No. 1 Deedar Hussain (Exh.5) who is Tapedar and who had prepared the sketch of the place of incident which he produced as Exh.5-A; P.W. No.2 Nizamuddin (Exh.6) the complainant who produced F.I.R. as Exh.6-A; P.W. No.3 Muhammad Yakoob (Exh.7) and P.W. No.4 Fateh Muhammad (Exh.8). Both these last mentioned witnesses are said to be the eye-witnesses of the incident. The prosecution further examined P.W. No.5 Dr. Ubedullah (Exh.9) who had conducted autopsy on the dead body. He produced the post mortem report as Exh.9-A; P.W. No.6. Mashir Ghulam Mustafa (Exh.10) who produced Mashimama of Wardat, arrest of the appellant and recovery of the crime weapon i.e. hatchet from him and the inquest report as Exhs.10-A to 10-C; and P.W. No.7 Aijaz Hussain (Exh.13) claiming to be conversant with the writing and signature of late Mr. Anulabdin (who as Mukhtiarkar and F.C.M., Qambar had recorded confession of the appellant) produced confessional statement of the appellant as Exh.14 and thereafter, the prosecution closed its side. A.S. -1. Badar Ali, the Investigating. Officer of the case was however, not examined by the prosecution.

5. The appellant in his statement under section 342, Cr.P.C. refuted the prosecution case and denied to have ever made any confessional statement. He, however, did neither examine himself on oath nor lead any defence. At the conclusion of the trial, he was visited with conviction and sentence as detailed hereinabove.

6. Mr. Nisar Ahmed Bhatti, Advocate argued this appeal on behalf of the appellant and contended that the ocular testimony comprises the interested witnesses as according to him they are closely related to the deceased and among themselves also. He also contended that the. enmity has been admitted by the prosecution witnesses and that under the circumstances, the case requires independent corroboration to sustain conviction which, according to him, was lacking in the case. He further, argued that the witnesses appear to have been set up being related to the deceased and the story fabricated. He argued that the incident having taken place in the month of February, i.e. winter season it was unlikely that the shops in the town would have opened enabling the complainant and P. Ws. to have made any purchases as early as 9-00 a.m. He lastly argued that the confession having been retracted by the appellant and its actual ascribe i.e. Mukhtiarkar and F.C.M. having not been examined and borne the test of cross-examination, would lend no support to the prosecution case and that the non-examination of the Investigating Officer who is otherwise a very important witness has rendered the conviction wholly unsustainable. He in support of his contentions relied upon 1993. SCMR 2236, 1988 PCr.LJ 606, 1999 PCr.LJ 2032, PLD 1968 Dacca 228, 1972 PCr.LJ 1259 and 1983 PCr.LJ 327.

7. As against above, Mr. Altaf Hussain Surhiyo learned counsel represented the State has supported the, impugned judgment and the conviction describing it as well-founded and fully justified by the evidence brought on record.

8. Having given my anxious consideration to the contentions of the -learned counsel and after perusing the record, I find that A.S.-I. Badar Ali Shah who has conducted the entire investigation of the case was not examined. He 'was not even formally given up by the prosecution. The prosecution while closing its side has simply n1entioned that material P.Ws. have been examined. This, in my view, was not sufficient and proper statement for dispensing with the evidence of such witness.

9. Investigating Officer in a criminal case is a. very important witness for the prosecution as well as for the defence. In absence of his evidence no Q criminal trial can be said to have been properly held/concluded. The D.D.A. making his closing statement has shown scant regard for the well-established rules of evidence concerning criminal trial by not considering the Investigating Officer of a criminal case as a material witness. In fact he is the only person who authorisedly collected the evidence and obtains a prime position by possessing total evidence in a criminal case.

10. In view of the above, I do not deem it necessary to dilate upon and examine other contentions raised on behalf of the appellant. In my view non examination of Investigating Officer in absence of very strong grounds such C as his death or his being not traceable despite all possible efforts, would alone render the conviction of an accused unsustainable.

11. Resultantly, the coilviction and sentence passed against the appellant is hereby set aside. His case is remanded to the trial Court with directions to examine the Investigating Officer or any other person competent to testify on p his behalf, if he is not found. The trial Court shall then reassess the entire evidence and proceed to decide the case afresh in the light of the evidence adduced by the parties within six months. It needs no mention that the trial Court shall exercise all powers available to it under the law to procure attendance of a witness.

12. The appellant was on bail during the proceedings of the case. He shall be released on bail subject to his furnishing two solvent sureties, each in the sum of Rs. one lac and P.R. Bond in the like amount to the satisfaction of the learned trial Court.

13. N.H.Q./M-51/K

14. Case remanded