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Criminal Appeal No. 14 of 1987, decided on 21st May, 1987,

---Ss.302 & 307/34--Previous statements, not proved, effect-- Allegation of investigating co-accused to kill deceased and pointing out deceased to him--Allegation not finding mention in previous statements of complainant and witnesses--Witnesses duly confronted with previous statements--Case of witnesses being different at trial to that set up in their previous statements--Contradictions not put to investigation officer, recording their statements--Previous statements, Held, were not proved in accordance with law and would, therefore, seriously prejudice case of accused--Conviction and sentence set aside and case remanded for recalling and cross-examining investigation officer on the point in circumstances.

P L D 1963 Kar.805 and Ansar Sardar v. State P L D 1964 Dacca 566 ref.

Muhammad Hayat Junejo for Appellant.

Akhlaq Ahmed Siddiqui for the State.

Date of hearing: 9th March, 1987.

The appellant was tried under sections 302, 307, 34, P.P.C. for the murder of Jamroz Khan son of Ali Jan, and for firing at P.Ws. Hafizur Rehman, Muhammad Pervez, Mutahir Shah and Muhammad Khan before the learned 1st Additional Sessions Judge, South, Karachi, who convicted him under section 302 read with section 34, P.P.C. and sentenced him to life imprisonment, and to pay fine of Rs. '2,000 or in default to undergo further R.I. for six months. He was also directed to pay compensation of Rs. 10,000 which was to be paid to the heirs of the deceased, and in default he was to suffer further R.I.for two years. He was acquitted so far the charge under section 307, P.P.C. was concerned vide judgment dated 4th February, 1987.

The brief facts of the case are that on 6-5-1986, one Samin Khan brother of deceased Jamroz Khan lodged a report at P.S. Jakson Karachi, alleging therein that he lives with his brother Jamroz Khan in Block 38, Quarter No. 628, K.P.T. Line, Keamari, Karachi. He is a permanent labourer in the dockyard. His brother Jamroz Khan also used to work as labourer. There are two factions in Karachi Harbourship Union. Abdul Karim is the President, while Fazil is Secretary of one faction who were supported by Khan Zareen, whereas Saifur Rehman is the President of other faction, and complainant's brother Jamroz Khan supports Saifur Rehman, both factions claimed leadership. Fazil and Abdul Karim suspected that the complainant and his brother support Saifur Rehman, and that the complainant had brought this faction. Whereas according to the complainant, he did not have any concern with this Union. In fact, the matter was that Karim and Fazil after taking money admitted new labourers in the union and provided work to them, and did not provide work to senior labourers, this was the reason for the opposition. That on 6-5-1985 at 9-00 a.m. his brother Jamroz, alongwith Hafizur ftehman, Muhammad Pervez, Muhammad Shah, Nooruddin went to give invitation of marriage at Dera of Jamadar Shafiq from the complainant's place, while the complainant was present at Dera, some boys came running and told him that Jamroz Khan was shot at by Muhammad Fazil and Abdul Karim, and they have ran away. He immediately reached Masjid Colony and found that dead body of Jamroz Khan was lying at the Dera of Shafiq alias Lal. P.Ws. Hafizur Rehman, Muhammad Pervez, Mutahir Shah and Muhammad Khan told him that when they reached the Dera of Lal, Muhammad Fazil and Abdul Karim came or scooter and cycle respectively. Muhammad Fazil fired at Jamroz Khan with pistol or revolver which hit him below the right shoulder, Jamroz Khan fell down, and they all moved forward to catch the accused but Abdul Karim fired a pistol or revolver and then both of them ran away in the street of Masjid Colony. The complainant saw that Jamroz Khan was dead.

This F.I. R. was recorded by S. H.O. Muhammad Suleman and same has been produced as Exh. 9. Thereafter, the S.H.0 visited wardat and prepared mashir in presence of mashirs Muhammad Shafiq alias Lal. Mutahir Shah and Hafizur Rehman, and obtained their signatures, the mashirnama has been produced as Ex. 12. Thereafter, mashirnama of dead body was prepared in presence of same mashirs and the same has been produced as Ex. 13. The S.H.O. then prepared inquest report and the same has been produced as Ex. 15. Thereafter, he recorded the statements of P.W. Samin Khan. Hafizur ftehman, Muhammad Pervez, Mutahir Shah, and Muhammad Jan before the challan was submitted in Court ca-accused Muhammad Fazil died. The dead body of deceased Jamroz Khan was referred by the S.H.O. for post-mortem examination and certificate. He had also recovered blood stained earth from the wardat, blood stained piece of rope of cot where dead body was lying. Vespa Scooter and cycle were also secured under same mashirnama. Blood-stained earth and piece of rasa 'rope' were sent to the Chemical Examiner for examination and reports, the report has been produced as Ex. 28. According to S.H.O., the appellant /accused Abdul Karim was arrested by another police officer as he was transferred in the meantime. The case challaned by Inspector Khan Afzal.

A formal charge under sections 302, 307 read with section 34, P.P.C. was framed against the appellant to which he pleaded not guilty.

At the trial, the prosecution examined P.W. Samin Khan complainant, P.W.2 Muhammad Pervez, an eye-witness P.W.3 Hafizur Rehman an eye-witness, he also acted as mashir of wardat and has produced the mashirnama as Ex. 12. Police had also prepared mashirnama of dead body in his presence which he has produced as Ex. 13. P.W.4 Mutahir Shah, an eye-witness, he acted as mashir of dead body as well as inquest, report, and produced inquest report as Ex. 15. P.W.5 Muhammad Jan an eye-witness P.W.E Sub-Inspector Sabir Hussain, who had searched for the accused and on inquiry he came to know that accused Fazil . had died, while Abdul Karim was not traceable. P.W.7 Dr. Munawar had carried on post-mortem on deceased Jamroz Khan. He has produced post-mortem report as Ex. 16. P. W.8 Sub-Inspector Muhammad Suleman who happened to be S.H.O. of P.S. Jakson, on the day of incident and. had recorded the F.I. R. and carried on the entire investigation except the arrest of accused Abdul Karim, and the case was challaned by Inspector Khan Afzal, as in the meantime Sub-Inspector Muhammad Suleman was transferred. He has produced chemical report as Ex. 28.

After close of the prosecution case, the statement of appellant Abdul Karim was recorded under section 342, Cr.P.C. -and his case was that of denial. He examined himself as a defence witness under section 340(2), Cr.P.C. and stated that during the days of this incident he was working as labourer at Karachi Dock Yard. Deceased, Fazil and co-accused was also labour worker there. Deceased Jamroz Khan was also working there as labourer, he, had no enmity with Jamroz Khan but his brother Samin Khan who is dock worker and used to punch cards of labourers, and war, taking half of the charges of himself and half of the charges he used to pay to the labourers. In exchange he was using other persons and receiving considerable amount. This was against the rules and terms of their department. He had reported the matter to the supervisor of dock. Samin Jan was given notice which annoyed him. Miskin Khan, who is appearing in this case as Counsel for the complainant, was the General Secretary of the Labourers Union Karachi Harbour. Labourers were dissatisfied with him and passed vote of no-confidence against him. He was removed from the post of General Secretary of the Union. A meeting of General Body was called in which he (Abdul Karim) was nominated as President of the Union, and co-accused Muhammad Fail was selected as General Secretary. This created annoyance to Miskin Khan. Miskin Khan was employee of karachi Dockyard and he was practising as a Lawyer simultaneously. On knowing these facts, union had given him show-cause notice with the. result that he resigned from his service. These were the reasons of enmity between Miskin Khan and appellant himself. Miskin Khan was annoyed with him as he suspected that he was removed from the service at the instance of the accused/ appellant. Samin Jan was his close friend and they used to reside together. Due to this, '.ie has been falsely implicated in this case. In fact, he was not present on the alleged day. After two/three days of the incident he went to his native place in District Mardan, there he came to know that he has been involved in a murder case of Jamroz Khan. He came back at Karachi and applied for bail before arrest.

He was granted interim bail but the same was not confirmed. In cross-examination he has stated that it is not a fact that there were differences between him and Jamroz Khan over groups of the Union. It was not correct that deceased Jamroz Khan was from different group of Union. It was incorrect to say that they wanted to remove Jamroz Khan from their Union. He has also denied all the suggestions made to him in respect of the prosecution case.

The learned trial Judge while relying upon the ocular evidence of P.W. Muhammad Pervez Ex. 10, Hafizur Rehman Ex. 11, Mutahir Shah Ex. 14 and Ali Jan Ex.16, corroborative evidence of complainant Samin Jan, motive and absondance, convicted the appellant under section 302/34, P.P.C. and sentenced him as described above, but he was acquitted under section 307, P.P.C.

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

The contention of Mr. Muhammad Hayat Junejo was that in the F.I.R. as well as in police statements there was no allegation of instigation against the appellant, but because of the death of main accused Muhammad Fazil the part of instigation was assigned to the appellant during the trial. This according to him, Gvas an improvement over the earlier version and, therefore, cannot be relied upon. In support of his contention he has relied upon P L D 1963 Kar. 805. He has further contended that even according to the evidence of P.Ws. the appellant had no motive to kill the deceased and that the deceased Jamroz Khan was already known to co-accused Muhammad Fazil, and therefore, the allegation that the present appellant pointed out the deceased to co-accused Muhammad Fazil was absurd and unbelievable. That all the P.Ws. were interested and inimical to the present appellant, and therefore, their evidence with regard to part assigned cannot be relied upon. That since the appellant voluntarily appeared before the Court and :applied for bail before arrest, and no evidence was led to show that proceedings under sections 87 and 88 Cr.P.C. were taken against the appellant. Even no question was put to the appellant about abscondance to explain in his statement under section 342, Cr.P:C. and, therefore, it could not be taken against the appellant as a piece of evidence. In support of this contention he has relied upon P L D 1982 S C 429; 1986 S C M R 982; PLD 1978 B J 39.

Mr. Akhlaq Ahmed Siddiqui, learned counsel appearing for the State has supported the judgment of the learned trial Judge and according to him, there was motive, and ocular evidence against the appellant which were sufficient to sustain conviction.

I have considered the contention of the learned counsel and have perused the record of the case. Admittedly, in the F.I. R it was not alleged that appellant/accused Abdul Karim asked co-accused Fazil to kill Jamroz Khan, and when the complainant was confronted with the contents of his F.I. R. in cross-examination, he stated that it is incorrect to suggest that I had not stated in the F.I.R. that Hafizur Rehman told me that Abdul Karim asked Fazil to kill Jamroz Khan. P.W. Muhammad Pervez also deposed in Court that Abdul Karim asked Fazil to kill deceased Jamroz Khan, telling him about Jamroz Khan. Fazil accordingly fired at Jamroz Khan. In cross-examination he was confronted with his statement before the police under section 161, Cr.P.C. but he stated that "it was stated by him before the police that accused Abdul Karim has pointed out to deceased telling co-accused Fazil that he was Jamroz Khan and he should kill him". Likewise P. W. Hafizur Rehman stated in examination-in-chief that Abdul Karim while pointing out to Jamroz Khan told Fazil that he was Jamroz Khan who should be killed. Ira cross-examination he stated that "I A have stated in 161, Cr.P.C. statement that Abdul Karim instigated Fazil to kill Jamroz Khan". P. W. Mutahir Shah stated in examination in-chief that Abdul Karim pointed Jamroz Khan and asked Fazil to kill him. Fazil accordingly fired pistol or revolver which struck on the supper side of chest on the left side of Jamroz Khan. In cross-examination he stated that "I have stated before the police that Abdul Karim pointed out to Jamroz Khan and asked Fazil to kill him" P.W. Muhammad Khan has stated in examination-in-chief that Karim asked Fazil kill Jamroz Khan. Fazil fired on Jamroz Khan who received bullet injuries on the upper side of left side of chest. In cross examination he has stated that "I have stated before the police that Karim pointed out to Jamroz Khan informing Fazil that he was Jamroz Khan.

From the discussion of the above -evidence, it is clear that the case of the complainant and eye-witnesses was different at the trial than the one set up earlier in the F.I.R. and 161, Cr.P.C. statements. Although the witnesses were confronted with their earlier statements, in cross-examination by the learned counsel appearing for the appellant, the said contradictions were not put to the Investigating Officer who recorded the F.I.R. and the statements of prosecution witnesses thus the same were not proved in accordance with law and, therefore, the case of the appellant was seriously prejudiced.

It is unfortunate that the contradictions which were material for the just decision of the case were not put to the S.H.O. and he was not cross-examined with reference to those important contradiction between the police statement" and the statements in Court, with the result that the same were not proved as envisaged by law.

In the case of Ansar Sardar v. The State P L D 1964 Dacca 566; it was held: -

"It was unfortunate that the prosecution witnesses were not cross-examined with reference to those vital statements made before the police although in Court their version was different than the one given in the police statements, and therefore, retrial was ordered."

In Muzaffar Khan Sikandar Khan and others v. Emperor AIR 1939 Lah. 268; it was held: -

"If the witness admits previous statement, which explains any discrepancy or contradiction, it obviously makes it unnecessary for the statement thereafter to be proved. On the other hand if statement still requires to be proved that can be done later by calling the person before whom the statement was made."

In view of the decision which I propose to give in the present appeal it is not necessary to go into other points raised by the learned counsel.

In these circumstances, I find it impossible to decide the fate of the appellant upon the evidence which has been brought on record. I, therefore, allow this appeal, set aside conviction and sentence of the appellant. The case is remanded back to the trial Court with the direction that the Investigating Officer Muhammad Suleman Mirza be recalled in order to provide opportunity to the Advocate of the appellant to further cross-examine the witnesses with regard to the contradictions between the F.I.R., police statements, and the evidence given by the complainant and the witnesses at the trial, and thereafter decide the matter in accordance with law. The case will go to the learned Sessions Judge, Karachi (South) who will either try it himself or send it to an Additional Sessions Judge other than the one who originally tried this case.

S.A./A-104/K Case remanded.

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