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Criminal Appeal No.28 of 1987, decided on 7th June, 1987.

---S.302--Motive--Evidence, appreciation of--Dispute over possession of ancestral land between deceased and father of accused--Land situated in N.-W.F.P.--Evidence of motive provided by son (complainant) and two daughters of deceased but no such motive was mentioned in F.I.R.--No documentary evidence of land belonging to deceased produced--No particulars of disputed land provided--Admittedly no civil suit filed by deceased regarding his share in property--No report about quarrel of deceased with accused to police--Witnesses contradicting each other on point of production of documentary evidence--Evidence of motive being unreliable, ruled out of consideration in circumstances.

---S.302--Ocular evidence, appreciation of--Eye-witness account- Witness examined at trial in absence of accused--Witness having no opportunity to identify accused before trial Judge--Witness claiming to be sitting near place of occurrence and identifying accused as well as deceased--Accused known to him previously--Witness contradicted by his previous statement on material particulars occurrence--Witness swearing affidavit before Magistrate denying his seeing occurrence and identifying accused--Witness not disclosing of his having seen occurrence to complainant and others visiting spot- Solitary word of such witness, held, could not be relied upon and was ruled out of consideration and acquittal ordered in circumstances.

---S.302--Recoveries--Blood- stained clothes and Chhuri--One of recovery witnesses declared hostile, other stating recovery memo to have been prepared at police station--Original report of Chemical Examiner not produced--Copy of report not bearing signatures of examiner--Chemical Examiner's report, held, was not admissible in evidence and recoveries could not be considered in circumstances.- [Recovery].

The appellant was tried alongwith Alamdin before the learned IInd Additional Sessions Judge, Karachi (South), Karachi for committing murder of one Gulabdin, who has convicted and sentenced him to imprisonment for life, and fine of Rs.10,000/- or in default to suffer further RI for two years, the fine if recovered was to be distributed amongst the legal heirs of the deceased, while co-accused was acquitted, vide his judgment dated 23-2-1987.

The brief facts of the prosecution case are that on 19-8-1984, the complainant Aslam Khan lodged a report at P.S. Frere, Karachi, inter alia alleging therein that on 18-8-1984 at 11-30 p.m. his sister Jamila Naz told him that uncle Alamdin had taken away her father and he had not returned home, and that he should go and find him out. The complainant told her that he will return, and then he went to sleep. After shortwhile, Alamdin and Noor Shah came and told him that Muhammad Ishaq had killed his (complainant's) father. In the meanwhile his sister Jamila Naz also came there. The complainant and others went to the place of incident and found the dead body of their father. The complainant then went and lodged his report. The F.I.R. has been produced as Ex.31. According to the complainant, the police accompanied him to the vardat, saw the dead body and prepared inquest report in his presence which he signed, the same has been produced as Ex.13. He was further examined by the police, and thereafter the dead body was given to him for taking the same to Jinnah hospital, Karachi, for post-mortem. The above FIR was registered by ASI Ghulam Asghar Khan which was sent to S.HO Mir Haiderkhan for investigation. After receipt of FIR, SHO Mir Haiderkhan proceeded to Vardat and prepared Mashirnama of Vardat which has been produced as Ex.12. He then prepared the inquest report and thereafter referred the dead body to Jinnah hospital for post-mortem. He then examined P.Ws. Haji Ghulam Sarwar, and Haji Zarif Khan. After post-mortem he delivered the dead body to the complainant Aslam and obtained signature from him on the receipt, which has been produced as Ex.34. Thereafter, he went to the quarter of the accused Ishaq and Alamdin and arrested them vide Mashirnama Ex.19. He interrogated both the accused, and on 22-8-1984 accused Ishaq disclosed that he has concealed the blood-stained Chhuri and clothes at Cantt. Railway Station in the adjacent bushes. He then proceeded to Cantt. Railway Station from where he picked two mashirs namely Shakilur Rehman and Lal Muhammad, and went to the bushes alongwith the accused, and on the pointation of the accused he secured blood stained clothes and Chhuri and prepared Mashirnama in presence of mashirs. The Mashirnama has been produced as Ex.21/Chhuri Article "A", clothes Article 'B', lying in Court, were secured by him from bushes at the pointation of the accused. He prepared the parcels and sealed clothes and Chhuri separately and the same were sent for chemical report as Ex.25. He had recorded further statement of complainant Aslam, and had also recorded the statement of Mir Afzal Khan, after completing the necessary formalities he submitted challan before the Court.

A formal charge was framed against the appellant and co-accused Alamdin, to which they pleaded not guilty.

At the trial prosecution examined PW 1 Shamim Akhtar, daughter of deceased Gulabdin, PW 2 Jamila Naz another daughter of Joceas -PW 3 Haji Ghulam Sarwar who had come to the Vardat on hearing that the police had gone there. Police had seen the dead body in his presence and prepared mashirnama of injuries which he produced as Ex.12. The police had also prepared inquest report his presence and the same had been produced as Ex. 13. PW 4 Khalil Ansari, who had conducted post-mortem on the dead body of the deceased, he has produced the post-mortem report as Ex.15. 5 Zarif Khan who resides near the vardat and had acted as mashir vardat, mashir of deed body and inquest report. The mashirnama vardat has been produced as Ex.18. PW 6, Shakilur Rehman acted as mashir of recovery of blood-stained Chhuri and clothes the place pointed out by the accused, and mas':: nama has produced as Ex.21. PW 7 Mir Afzal an eye-witness of the incident. He has produced an application said to have been moved by him D.C. (South) Karachi, as Ex. 25. PW 8 Aslam Khan was the complainer he has produced the FIR as Ex.21. PW 9 Mir Haiderkhan, Inspector/SHO PS Frere, Karachi, at the relevant time, and had carried on the investigation and challaned the accused before the Court He i; produced chemical report as Ex.35.

After close of the prosecution case, statement of appellant Muhammad Ishaq and co-accused were recorded, under section 342, Cr.P.C. in which they denied the allegations. It was further stated by the appellant Muhammad Ishaq that deceased had no ancestral; property at district Mardan or at any other place. He has flirt; stated that the complainant party was on inimical terms with him, while the remaining prosecution have been purchased by them. That he was arrested after 4/3 days of the incident, and was detained P.S. Frere, PW Mir Afzal was called by the police and he was shown to him but he refused to identify the accused. Thereafter, he v made a witness against him by the police. He was never arrested presence of P.Ws Haji Ghulam Sarwar and Zamir Khan, and nothing was secured at his pointation. A false memo of recovery was prepare at PS where Shakilur Rehman put his signatures. The clothes deceased have been foisted upon him by the police. The article exhibited in Court were never sent to chemical examiner. The report of chemical examiner produced on the record of the case does wit, bear signatures of chemical examiner. He has further stated that there was matrimonial dispute with the deceased as he had refused accept the hand of his daughter. This perhaps annoyed the deceased and his family members, and for this reason he was falsely implicated in this case. He has not led any defence. The case of co-accused Alamdin was simple' denial. He has not examined any witnesses defence. Witness Mr3 Abdullah Bhatti who happened to be ACM South; Karachi on 19th May, 1985, was examined as Court witness. He produced the application forwarded to him by ADM (South) Karachi as Ex.38, according to him, it was brought to him by PW Mir Afzal Shah and his advocate Mr. Sultan. He has also produced affidavit ' sworn by PW Mir Afzal as Ex.39.

The learned trial Judge while relying upon the evidence motive, ocular evidence of PW Mir Afzal, corroborative evidence complainant Aslam Khan, Mst.Shamim Akhtar and Jamila Naz, and the evidence of recovery of blood-stained Chhuri and clothes convict. the present appellant, while co-accused Alamdin was acquitted.

PW Dr. Khalil Ansari, who conducted the post-mortem on dead body of Ghulabdin has deposed that he found the following injuries on the person of the deceased.

(1) I/W 4" x 2" x wound deep at right parieto occipital region, of scalp.

(2) I/W left angle of mouth cutting downwards lower lip is about 1" x i" x M/D.

(3) I/W right side chin 1" x -a"" x M/D.

(4) I/W right side neck x 3" x 1" x 4" upper 1/3 part.

(5) I/W right side neck 2" x 1" x 4" lower 1/3rd part.

(6) I/W right upper arm lateral surface upper quadrand 1 x 1 x M/D.

(7) I/W right hypochondrium region horizental 3" x 1" cavity deep.

According to him, all the above injuries were anti-mortem and in his opinion the cause of death was cardio respiratory failure due to shock and haemorrhage due to injuries to internal organs. The injuries appeared to have been caused with some sharp cutting object and were collectively sufficient to cause death of the deceased. He has produced the post-mortem report as Ex.15.

I have heard Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellant, Mr. Niaz Ahmed, learned counsel appearing for the State, and have also gone through the record and proceedings of the case.

The contention of Mr. Muhammad Hayat Junejo is that the FIR does not show that the appellant had any motive to kill the deceased nor it shows that there was any dispute over land between the parties, and therefore, the evidence was afterthought and could not be relied upon. That the ocular evidence of P.W.Mir Afzal is absurd, unreliable and unnatural. His name does not transpire in FIR, his conduct was such that he could not be relied upon. Even according to him he was examined three days after incident. He himself gave an application to D.C. (South) and gave affidavit before the A C M No.I (South) Mr. Abdullah Bhatti stating therein that he was not an eye-witness of the incident. So far, recovery was concerned, his contention was that recovery was made three days after the arrest of the appellant and that the copy of chemical report was produced which does not bear signature of chemical examiner and therefore was inadmissible.

Mr. Niaz Ahmed Khan learned counsel appearing for the State has contended that there was motive, ocular evidence of P. W. Mir Afzal, and recovery of blood-stained clothes and Chhuri from the appellant, and therefore, he was rightly convicted by the trial Court.

So far as the evidence of motive is concerned it is furnished by three witnesses namely complainant Aslam Khan, PW Mst. Shamim Akhtar and PW Mst. Jamila Naz. That complainant Aslam Khan is son of deceased while Mst. Shamim Akhtar and Jamila Naz are daughters of the deceased. The complainant Aslam Khan has not mentioned any, motive in the FIR. At the trial he has stated that the accused had committed murder of his father because his father had declared that he will go to his native place and will decide about the lands there, which were in possession of the father of the accused. His father wanted to dispose of those lands after getting the possession of the land from the father of the accused. In cross-examination, he stated that it is correct to suggest that I have never visited my native place. It is further correct to suggest that I am not in possession of any documentary evidence regarding ancestral property at my native place.

So far P.W. Mst. Shamim Akhtar is concerned, she has stated that her father Ghulabdin had a dispute with Jumma Khan father of accused Ishaq over the property left by her father at Peshawar. The father of accused Ishaq used to refuse to give share of the property to her father whenever it was demanded from him. According to her, one month prior to this incident deceased had a conversation with accused Ishaq at Karachi regarding the disputed property, which had annoyed accused Ishaq and he gave threats of dire consequences to her father. In cross-examination, she has stated that it is correct that before police she had stated that she, her sister and brother had never gone to native place. According to her she had produce the documentary evidence before the police, to establish that her C father had a share in the property situated at his native place. Her father had not filed any civil suit regarding his share in any Court. No report regarding the mini quarrel with Ishaq was reported to police by her deceased father or anyone else on his behalf. She has been belied by Investigating Officer, who has stated that no document) was produced by any one regarding landed property.

Mst. Jamila Naz the third witness on the point of motive has stated that her father had a piece of land at their native place which is in possession of her uncle. Her father wanted the land and, therefore, he demanded the same from accused Ishaq and a quarral took place between her father and accused Ishaq about one month prior to the incident. In cross-examination she had stated that it is incorrect that she had not stated in 161, Cr.P.C. statement that her father wanted the possession of the land and that her uncle Jumma Khan refused to do so. She has further stated that it is correct that she has not given the details of the location, area and other description regarding the land to police. She has further stated that she does) not remember, if any proof regarding the title of the property was produced before the police or not. That she does not know if the relations between Ishaq and his father Juma Khan were strained. It is correct that no report regarding the quarrel which took place between her father and accused Ishaq was lodged.

The evidence of PW Shamim Akhtar and Jamila Naz is belied by complainant Aslam Khan inasmuch as if there was any dispute between the deceased and Jumma Khan father of the appellant over land, and there was any talk between the deceased and appellant Ishaq in this respect, then Aslam Khan was bound to know it, he being the male member of family and would have mentioned the same in his FIR. The claim of P.W. Jamila Naz that she had produced the documentary evidence before the police is also belied by the Investigating Officer inasmuch as according to him, no document was produced by any of the witnesses regarding land or land dispute. It is, therefore, clear that the evidence of motive is unreliable and is ruled out of consideration.

The ocular evidence consists of word of PW Mir Afzal. According to him, at 10-30 p.m. he was present at the Power House Station when he saw two persons coming inside the gate which approaches from the railway colony. He noticed that one person was giving shoulder aid support to another person whose mouth was closed with a piece of cloth. When the couple walked for about 15 paces, one of the persons gave a push to other, and that person fell down on the ground. He also saw that person causing Chhuri injuries on person who had fallen on the ground. Due to sudden shock he was unable to move, and witnessed the incident from the place where he was sitting. Thereafter, that person came to the place where he was sitting and he identified that person as appellant Muhammad Ishaq, as he was known to him previously. The appellant/ accused escaped from wardat and he raised cries. Thereafter, he went towards the injured and identified him as Gulab Din, who had died by that time. Many other persons from the locality had also come at wardat. It will be worth-while to mention here that appellant Ishaq was not present in the Court on the day when this witness was examined as he was not brought from jail custody, and the witness had no opportunity to say whether the appellant Muhammad Ishaq was the same person, who had committed murder. In cross-examination he stated that he cannot say as to when and where he was examined by the police, as due to nervousness and shock, he was unable to have any food continuously for three days. He has further stated that the murderer remained at the wardat for one minute or so and then escaped from there. That he was not in proper senses and, therefore, cannot say as to what type of alarms were raised by him, but probably he must, have raised a cry after the incident was over. He further stated that he cries 'MURDER' 'MURDER' due to fear, ht could not go near the person who was lying at wardat but when the residents of the locality came in the power house, then only he went near the dead body. He was confronted with his 161, Cr.P.C. statement wherein he had not stated that he was sitting at the gate of power house at the time of incident. That the face of one of the persons was closed with a cloth, and that the person who had caused injuries had stood in front of him. That he had not stated that he raised the alarm 'Murder' 'Murder', but due to fear he kept quite. He denied the above suggestions and these contradictions have been proved through Investigating Officer Mir Haider Khan. The witness further admitted that on 19-5-1985 he had appeared before DC (South) Karachi, and moved an application, voluntarily further stated that he appeared there in order to save his life, respect and property which was at stake at that time, at the hands of the companions of accused Ishaq. He has denied the suggestion that under the direction of DC (South), Karachi, he appeared before ACM No.l, (South) Karachi, and gave affidavit. He was shown a photocopy of his affidavit dated 19-05-1985 and he admitted that it bears his signature. The same has been produced as Ex.25. The certified copy of affidavit Ex.25 has been produced as Ex.26. His explanation was that he was taken .forcibly by two police constables and produced before the Advocate who was sitting with him in the car. He was given threats of dire consequences and therefore, he signed the original affidavit. He has admitted that he never complained to the Magistrate that his signatures were obt4lned forcibly as he was never taken to any Court nor he appeared before any Magistrate. It is incorrect that he had stated in Ex.25, that due to fear he had gone inside the power house room, and closed the door. He had denied the suggestion that in the affidavit he stated that he did not see or identify the culprit. The Magistrate Mr. Abdullah Bhatti was summoned as Court witness and he has produced the application moved by witness Mr. Afzal as Ex.38. According to

Mr. Abdullah, witness Mir Afzal Shah had brought this application and he was accompanied by advocate. Mr. Sultan he appeared alongwith writ affidavit and before attesting it, the Magistrate informed the witness that he was a first Class magistrate and he was not bound to give affidavit. Thereafter, he read over the contents of affidavit to P.W. Mir Afzal and then he peat signature on the affidavit. He was identified by Mr. Sultan Advocate. The affidavit in original has been produced as Ex.39. The contents of this affidavit have been proved through Mr. Abdullah Bhatti. The very fact that when the complainant and others visited tire wardat P.4V. Mir Afzal did not disclose before them that he had seen the incident and identified; the present appellant, and the fact that he has made contradictory statements and given affidavit before Mr. Abdullah Bhatti, F C M stating that he did not see the incident nor he identified the culprit. His solitary word cannot, therefore, be relied upon, and as such hi evidence being unreliable is ruled out of consideration.

Now we are left with the evidence of blood-stained Shalwar, shirt and chhuri. On the point of arrest of appellant mashir Zareef Khan has been examined. His house is near the vardat according to him he saw persons gathering in the street, anti therefore, he went there. He was told that one of their relatives has been murdered. but they did not tell him the name of the accused. According to him two persons who had lodged the report with the police were taker into custody by the police, one of them was Alamdin and the other was not present in Court. He was declared as hostile and cross-examined by APP. In cross-examination of APP he has admitted that two accused were arrested in his presence and that of co-mashir Ghulam Sarwar. So far the appellant Ishaq was concerned he stated that he was never arrested in his presence nor had been him before. On the point of recovery mashir Shakilur Rehman has been; examined, and according to him, accused Ishaq had pointed the place to the police from where blood-stained chhuri and clothes were secured.

He has produced mashirnama of recovery as Ex.21. According to this mashir the police had got the signatures of accused Ishaq on their memo. 8x.21. at P.S. where the memo was prepared. It has been contended by Mr. Muhamniad Hayat Junejo, learned counsel for the appellant that since the memo. of recovery was not prepared at the vardat and that the original chemical report has not been produced, but only attested copy has been produced and as such it was inadmissible, in evidence.

Under section 510, Cr.P.C. documents purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, or any Serologist, upon any matter or thing duly submitted to him for examination or analysis, the report could be used as evidence in any enquiry, trial or other proceedings under this Court.

The bare reading of the above section shows that the report must bear signature of the Chemical Examiner or Assistant Chemical Examiner but in the present case it is attested by Officer-in-Incharge Chemical Bacteriological Laboratory Department of Sind, Karachi, and not signed as required by law, and, therefore, the same was inadmissible in evidence.

In view of the above discussion I am of the considered view that the prosecution had failed to prove it's case against the appellant beyond reasonable doubt, and therefore, the appeal is allowed, conviction and sentence of the appellant is set aside, and he is acquitted of the charge. He shall be released forthwith unless required in any other case.

I had disposed of the above appeal by a short order on 2-4-1987, and these are the reasons for the same.

S.A. /M-183/K Appeal allowed.

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