RIAZ MASIH alias MITHOO vs THE STATE

' MUHAMMAD MUNIR KHAN, J.---This appeal with leave of the Court arises from the facts that in the occurrence which took place on 25-5-1989 at 10-00 p.m. In front of Gate of Masjid Sirajia in the area of Police Station Banni, Rawalpindi City, Riaz Masih alias Mithoo appellant caused the death of Shamoon by inflicting injuries with knife on different parts of his body, in the presence of Tariq Masih P.W.2, Maqsood P.W.3 and Shaukat Masih P.W.4. Shamoon was removed to the hospital in injured condition. He was examined in the Emergency Ward of the Hospital by Dr. Muhammad Riaz M.O. P.W.S. He died in the hospital before medical aid could be given to him.

2. The motive allegedly was a dispute over the payment of money due from the deceased to the appellant.

3. On the basis of the statement of Boota Masih P.W.1 father of the deceased, recorded by Muhammad Anwar S.I. P.W.8 on 26-5-1989 at 12.-15 a.m. Formal F.I.R Exh.PA/1 was registered at the Police Station by Allah Ditta A.S.I. P.W.7. Dr. Irfan Akhtar P.W.11 conducted post-mortem examination on the dead body of Shamoon and found three incised wounds and one abrasion on it, sufficient to cause death in the ordinary course of nature. The appellant was arrested on 29-5-1989. On 4-6- 1989 he got recovered blood-stained knife (P.5) from his house in the presence of Muhammad Anwar S.I. P.W.8, and Ch. Iftikhar Ahmed Inspector P.W.10.

4. Prosecution examined as many as eleven witnesses. Boota Masih P.W.1 the father of the deceased is not an eye-witness of the occurrence. On the information of Maqsood P.W.3 that Shamoon was injured by Riaz Masih appellant, he went to the Holy Family Hospital where he found his son already dead. Police came to the hospital where he made his statement Exh.PA before it.

Supporting the prosecution case, Tariq Masih P.W.2 stated that at the eventful time Riaz Masih demanded money from Shamoon who replied that he had no money with him whereupon Riaz Masih took out knife from his Shalwar and inflicted injuries to him. Maqsood P.W.3 has not supported the prosecution case stating that he did not know who killed Shamoon. He was declared hostile and cross-examined by the Public Prosecutor and Counsel for the accused as well. Shaukat Masih P.W.4 claimed to have seen Riaz Masih inflicting three/four knife blows on the person of Shamoon deceased. Allah Ditta A.S.I. P.W.7 and Iftikhar Ahmed Inspector P.W.10 have supported the recovery of blood-stained knife P5 from the appellant. The Serologist's report revealed that the knife was stained with human blood. The rest of the evidence is of formal nature.

' In his statement under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised the plea of innocence. In reply to Question No,5, he stated:-- "It is incorrect. Nothing incriminating was recovered from me irrespective of that I appeared before the Police voluntarily on 26-5-1989 and this was conceded by the complainant father of the deceased. My arrest was dishonestly shown on 29-5-1989. I was student of 8th class during the days of occurrence and the local police coerced with me and tortured me but in spite of all this brutality nothing was recovered from me and on the last day/moment of my remand they foisted a knife of common pattern which is easily available for a few rupees from the bazaar at the behest of complainant to strengthen their main murder case and the alleged recovery from my parents house which is situated in densely populated area in the heart of Rawalpindi but still not a single witness from the vicinity was neither sent for nor associated in the so-called fake recovery proceedings."

' He neither produced evidence in defence nor himself made statement on oath in disproof of the allegations.

5. Believing the ocular evidence and the recoveries, the Additional Sessions Judge, Rawalpindi, vide his judgment dated 8-12-1991 convicted the appellant under section 302, P.P.C. And sentenced him to imprisonment for life and a fine of Rs,20,000 or in default two years' R.I. He was directed to pay Rs,10,000 as compensation to the legal heirs of the deceased or to suffer one years' R.I. In default.

The appeal filed by him was dismissed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, on 10-5-1993. Feeling aggrieved thereby, he filed a petition for leave to appeal in this Court which was granted on 3-10-1993 to consider whether uncorroborated testimony of Tariq Masih in the circumstances of the case was sufficient to form a basis for conviction.

6. Learned counsel for the appellant has vehemently argued that out of the three eye-witnesses produced by the prosecution, the name of Shaukat Masih P.W.4 was not mentioned in the F.I.R.; that Maqsood P.W.3 has declined to support the prosecution case; that since Tariq Masih P.W.2 was admittedly detained in the Police Station as a suspect in this case and there is evidence on record to the effect that the Police had been compelling the eyewitnesses to make false statement, therefore, no implicit reliance can be placed on his statement; that the recovery of blood-stained knife from the appellant on 4-6-1989 was fake; and that the investigation in this case was highly dishonest.

' Conversely, learned counsel for the State has supported the impugned judgment.

7. We have anxiously attended to the arguments addressed by the learned counsel for the parties in the light of the evidence on record and circumstances of the case. We feel persuaded to agree with the learned counsel for the appellant and find that Maqsood P.W.3 has not supported the prosecution case at all; Shaukat Masih P.W.4 was not believed by the trial Court; the High Court has, however, believed him for reasons of its own. On our independent assessment, we decline to rely upon his statement for the reason that his name is not mentioned in the F.I.R ., although before lodging of the F.I.R., the witnesses had narrated the occurrence to Boota Masih complainant.

Shaukat Masih is the brother of the wife of the deceased. Boota Masih complainant is also his uncle. In his statement before the Court Shaukat Masih stated that "Boota P.W. Met me in the hospital at 10-00 p.m. I told Boota I had seen the occurrence with details. When I was narrating the details of the occurrence these three witnesses Sohail, Tariq and Maqsood present there were hearing that I was telling Boota". Despite this, surprisingly, his name was not mentioned as an eye- witness by Boota Masih in the F.I.R. For excluding statement of a witness from consideration, it is not necessary that there should be more than one reasons or circumstances. If one reason creates reasonable doubt in a reasonable mind regarding presence of the witness, that alone would be sufficient for discarding statement of that witness.

8. As regards Tariq Masih P.W.2, no doubt he has supported the allegation of murder of the deceased against the appellant yet, in the circumstances of the case, we feel that it would be highly unsafe to rely on his statement for convicting the appellant, in that, not only he, but Boota Masih complainant--the father of the deceased, has also admitted that he (Tariq Masih) was kept for about two days by the Police as a suspect for the murder of the deceased. Boota Masih has stated that "the dead body of my son was handed over to the doctor at 12. The dead body remained with the doctor till next night up to 12. The police arranged to get this dead body kept with the doctor for 24 hours. This is correct that the police did so to know as who was the murderer.

Maqsood, Sohail and Tariq was also make to sit in the police station in connection with this incident as suspects." Tariq Masih P.W.2 stated that "the police took me to the police station and detained me there for interrogations. I was detained in the police station for two days and was interrogated as a suspect". Maqsood P.W.3 stated "the other suspect of this murder was P.W. Tariq and Sohail.

Myself, Tariq and Sohail were being compelled by the S.H.O. To make a statement involving Riaz Masih as a murderer of Shamoon". In view of these admissions made by the prosecution witnesses, we feel that it would be in consonance with the rules of the safe administration of justice in criminal cases that the statement of Tariq Masih P.W.2 should be excluded from consideration.

9. Having excluded the ocular evidence, there remains only circumstance of recovery of blood- stained knife from the appellant, which by itself is not sufficient for conviction on murder charge.

Even otherwise, the recovery of knife appears to be doubtful. From the statement of Boota Masih complainant it is very much clear that the appellant was arrested on the following day of the occurrence and was continuously kept in Police custody. No independent person was asked to join the recovery proceedings. The attesting witnesses are the Police officials. The recovery was effected on the last day of the physical remand of the appellant. The investigation appears to be doubtful. It also does not appeal to the reason that the appellant would have kept blood-stained knife in his house intact till 4-6-1989.

10. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence, the appeal is accepted and the appellant is acquitted. He has already been released through short order and these are reasons therefor.