Find a Lawyer

Criminal Appeals Nos. 4 and 5 of 1976, heard on 19th November, 1979.

‑‑‑S. 382‑Evidence, appreciation of‑First Information Report lodged with some delay and after deliberation‑Ocular testimony full of contradictions, omissions and alterations‑One 'of recovery witnesses coming all way to place of occurrence from a different place. to verify recovery of incriminating articles but contradicting complainant on question of place where such articles handed over to police‑Recovery of empty cartridges also finding no mention in F.I.R. itself and appearing doubtful‑Conviction and sentence set aside, in circumstances.‑[Evidence].

Mir Muhammad Shaikh for Appellant.

A. B. Laghari for the State.

Date of hearing : 19th November, 1979.

'The appellant has been convicted under section 382, P. P. C. and sentenced to suffer 2 years' R. I. by one judgment and by Another judgment he has been convicted under section 13-D of Arms Ordinance and sentenced to suffer R. I. for one year and 7 months. The two appeals have been heard together as they arose out of the same incident.

Mr. Hasan P. W. 3 filed an F. I. R. at Mehar Police Station on 10th June 1971 at 7‑15 hours alleging that he was sleeping in his house when after mid‑night he woke up on barking of dogs and found one bullock missing. In the moonlight he saw two persons one armed with gun and other going with his bullock. He chased them shouting thief, thief whereupon person with gun had fired on him but it missed. Saddiq, Shaman and Abdul Ghafoor had gathered whereupon the gunman fired but it also missed and the thief with the bullock left the bullock and ran away. They all surrounded the gunman and snatched the gun from him. He was Umer. The bullock and the seized single barrel gun was then brought to the house and accused was left tied with rope. Complainant stated that he had come to the police station with the gun which he produced and lodged complaint. The number of the gun is mentioned in the F. I. R. The case was investigated by the S. H. O. Ali Bux P. W. 6, who recorded the F. I. R. and reached the vardat and prepared memo of vardat Exh. 8. Memo of arrest of the accused was Exh. 9, memo of recovery of gun was Exh. 6, and memo. of recovery of bullock was Exh. 7. The mashirs of the mashirnama were Mohammad Achar P‑1 and Ghulam Ahmed P. W. 2. The case was thereafter challaned.

The prosecution examined complainant Mir Hassan who stated that he woke up after mid‑night on the barking of dog, saw two persons taking away his bullock. One of them had a gun and other had a hatchet. He raised cries thief, thief on which Shaman, Siddiq and Abdul Ghafoor came to the vardat. The accused had the gun and fired twice from his gun. The appellant was surrounded and caught along with gun while the other accused escaped and this accused was left at the Otak of Mohammad Sodhar and complainant went to lodge the report. He stated that he produced the accused's gun, and cartridges and bullock before the police when they came at the vardat. This portion was a deviation from the F. 1. R. where he .had stated that he had taken the gun to the police station. In cross‑examination he denied that he knew Pir Ali Mardan Shah or he was his Mureed but he was confronted with his statement before Asstt. Sessions Judge where he had admitted that he was disciple of Pir Ali Mardan Shah. He also admitted that he had gone to Pir Achar before he went to lodge the F. I. R. He admitted that he had caught the accused at a distance of 150 paces from his house. He denied the suggestion that they caught hold .of the accused from link road. He asserted that he produced the gun, cartridges, and bullock in house. But this is different from what he had stated in examination- in‑chief that he had left the accused at the otak of Mohammad Sodhar. He denied that Soomar Kolachi was with the accused when he was caught and Soomar Kolachi had enquired from them as to why they were implicating the accused. He stated that he did not know the accused previously. He had admitted that accused residing about 2 miles away from his village. He denied that he had taken the gun to the police station and also denied that in the F.I.R. he had produced the gun recover ed from the accused. This denial of course was wrong as even the number of the gun is mentioned in the F. I. R. He admitted that the two shots fired by the accused were made in the air. This witness has not explained as to wherefrom he had secured the cartridges which he produced before the, police, and I do not know with what object the place of handling over of the gun to the police by the complainant has been changed from the police station as shown in the F. I. R. to the house of the complainant as deposed by him.

P. W. Shaman has claimed to come on the cries of thief, thief and a gunshot report. He went running to the vardat. Abdul‑ Ghafoor and Mohammad Siddiq also came there. The accused also fired at them but it missed. They surrounded the accused. Shaman grappled with the accused. Siddiq and Abdul Ghafoor also reached there. Gun was recovered from the accused. The other thief who had the bullock with him escaped. The accused was tied down and kept in the house of the complainant. In cross‑examination he admitted that they knew the accused previously. He claimed that it was moonlit night but he was shown his lower court deposition where he had admitted that it was a dark night Exh. 18. He had stated that the complainant did not take away the gun with him to the police station. He admitted that P. W. Siddiq was his uncle. He ,further admitted that the katcha road link Mehar Fareed Abad Road passes at a distance of 50 paces from the village. They caught the accused at a distance of 5 to 10 paces from the link road. He denied that he was a follower of Pir Ali Mardan Shah. He denied the presence of Soomar Kolachi with the accused. He further denied having implicated the accused at the instance of Pir Ali Mardan Shah. He denied that the accused and the property were in the Otak of Mohammad Sodhar when the police arrived at the vardat. He admitted that P. W. Achar was with the police. He is an immediate neighbour of the complainant and thus on visiting terms on ceremonial occasion. He admitted that the appellant was running towards east where as the other culprit was running towards south. P. W. 5 Mohammad Siddiq also woke up on gun report and saw two thieves one of whom had a gun while the other was taking away the bullock. P. W. Shaman and Abdul Ghafoor also came there. The other thief ran away while the present accused fired in the air. Then they caught hold of the accused with the gun. He has admitted in the cross‑examination that the accused was 50 paces away from them when they first saw them. He further admitted that the accused was caught on the katcha road which links Mehar Fareedabad road. He denied the presence of Soomar Kolachi with the accused or that Soomar Kolachi restrained them from implicating the accused. He denied being the follower of Pir Ali Mardan Shah but stated that he knew him. He knew Abdul Rasool who was Kamdar of Pir Ali Mardan Shah. He denied that he had implicated the accused falsely at the instance of Abdur Rasool. He admitted that he knows Esoo Sodhar had asked Mohammad Sodhar not to establish matrimonial relationship with accused Umer. But Mohammad Sodhar established matrimonial connection with. the present accused despite that. He was asked if he knew that the accused was a servant of Pir Ali Mardan Shah and had been turned out of service. This witness denied any knowledge of such service of the accused or removal from the service. But, in his statement before the Asstt. Sessions Judge Exh. 20 he had stated as follows :‑

"I know that accused Umer who is present in Court was employee of Pir Ali Mardan Shah. He was removed from employment."

He admitted that Ali Sher, Mehar and Lai Bux had also come to the vardat at gun report and commotion, (these witnesses were not examined as P.Ws.). He denied that the complainant did not take the gun to the police station and even denied that he had made such statement before the ,Assistant Sessions Judge, but Exh. 21 shows that he had stated that the complainant took the gun secured from the accused himself and went to police station for lodging F.I.R.

The prosecution had examined P.W. 1 Mohammad Achar and P.W. 2 Ghulam Ahmed to prove the preparation of memos. of vardat, arrest of accused, recovery of bullock and recovery of the gun. P.W. Achar had stated that two empty cartridges were produced by the complainant before police and police did not secure any cartridge from the vardat. He also stated that the vardat was in the house of the complainant. But in cross‑examination he stated that the gun was produced at the otak of Mohammad Sodhar and not at the police station. He admitted that his village was at the distance of one mile from the village of the complai nant. He admitted that complainant had gone to him before lodging the 1 .1.R. and told him that he had caught the accused and he advised him to lodge the F.I.R. It has not been explained either by him or the complainant as to why this consultation before filing the F.I.R. was neces sary. This witness denied that he had stated in the Lower Court that he was called by the police from Mehar Town, but he had stated so in the lower Court vide Exh. 10. He did not remember to have stated before the police that he and co‑mashir Ghulam Ahmed were sitting at the police station when the complainant came to lodge his F.I.R. He admitted that the place from where the accused was captured was 50 paces from the house of the complainant and it was a public road. Muhammad Sodhar is the Nek Mard of the village of the complainant and this witness had said in the lower Court that he had seen Mohammad Sodhar at his otak. The deposition of Ghulam Ahmed P.W. 2 the other mashir of all these mashirnama was to the same effect except that he did not state that he had gone to the vardat. He admitted in the cross‑examination that all the mashirnama was prepared at the otak of Mohammad Sodhar. He denied that he had stated before the police that he and Achar were sitting at the police station when the complainant produced the gun and lodged his F.I.R. In this connection I may mention here that the memo of vardat Exh. 15 shows the scene of offence in the house of the complainant and there were struggling mark and hoof prints of bullock. Two empties of cartridges of ‑ 12 bore of Eley Co., were lying at the vardat which were taken into the police possession.

The Investigating Officer S.H.O. Ali Bux stated in his examination‑in -chief that the gun was produced before him by the complainant party when he had gone to the vardat where he had arrested the accused earlier. He stated that he had secured two empties of cartridges from the varriae. He lodged_F.I.R. under section 13‑D against the accused as he had no licence of gun with him. He returned the bullock which was the subject of theft, to the complainant after obtaining receipt. In cross‑examination he denied that the complainant had brought the gun to the police station. He gave many evasive replies and stated in reply to various questions that he did not remember. But every time he was confronted with his statement before the Assistant Sessions Judge. He had admitted that the complainant had told him as under :‑

"having secured the gun from the accused, I produced the same and lodged my report."

He did not remember whether he sealed the bun and cartridges but in the lower Court he had stated that he did not seal the gun and cartridges. He was forced to admit that he had mentioned gun number in the F.LR. which was recorded by him.‑ He did not remember if he called the accused from Mehar town, but P.W. Achar had stated in the lower Court that he was called from Mehar Town. He asserted that the cartridges were lying at tire vardat and were not produced by the complainant. But the complain ant in his deposition had said so and therefore their versions contradict each other. The 1.0. admitted that ‑Pir Ali Mardan Shah was the owner of the gun in whose name was the licence of the gun. He could not say if Abdur Rasool was the complainant in the case registered against the accused for commission of the theft of the same gun. But 1 can take judicial notice of the fact that this very officer of the police was the Investi gating Officer in the case of theft of that very gun by the present accused as the discharge order has been produced by the accused in that case which show's that Abdur Rasool was complainant in that case and S. H.O. Ali Bux had conducted the whole investigation in that case, but was given up by the prosecution and that case ended in discharge of the accused under section 253 of Cr. P. C. This witness, had therefore not told the truth when he denied the knowledge of Abdur Rasool being the complainant in that case. He even did not remember in the trial Court if Abdur Rasool was Kamdar of Pir Ali Mardan Shah, but he had admitted before the Assistant Sessions Judge that in that case one Abdur Rasool Kamdar of Pir Ali Mardan Shah was figured as a complainant. This 1.0. did not remember whether he had challaned the accused in that case and what was the result of that case. He even admitted in the cross‑examination that accused was arrested at 9 a.m. on l0ih June 1971, but his remand was obtained on 12th June 1971, without giving any explanation as to why the remand was not obtained within 24 hours. He admitted that P. W. Siddiq had stated before him that the complainant had taken the gun with him when he went to lodge F.I.R. He also admitted that Shaman had stated before him that the complainant took the gun and went to Mehar. He admitted that it was open place where the accused was stated to have been secured by the complainant. The accused in his statement before the trial Court denied the allegations and stated that the case has been filed against him at the instance of Pir Ali Mardan Shah. Ail the P.Ws. are Haris and Mureeds of Pir Ali Mardan Shah. Previously he was servant of Pir Ali Mardan Shah but was turned out from the service and then falsely implicated in this false case. Before the trial Court the accused took the same plea of false implication at the instance of Pir Ali Mardan Shah and also stated that he had gone to recover the price of his buffalo from one Yakoob Zaki at village Qaim Jatoi but since he was not therefore they returned at about sunset time and on their way the complainant and P.Ws. had captured him. The accused was accompanied by Soomar Kolachi who protested but he was threatened to keep quiet. He also submitted that he was establishing relationship with one Mohammad Sodhar but one Esoo was not happy over this matter and Esoo eras brother of P.W. Ghulam Ahmed and other P. Ws. are related to the complainant.

Mr. Mir Mohammad Shaikh has submitted ‑that the P.Ws. in this case have made so much contradictions, omissions and alterations in their statements that they should not be believed. Mr. Ali Bux Leghari appearing for the State has submitted that there are certain circumstances of tyre, case which raised some doubt but otherwise the case has been amply proved. After giving consideration to the evidence led by the prosecution I find that F.I.R. in the case seems to have filed after some del3v and is the result of some deliberation. The incident took place at mid‑night and the F.I.R. was filed at 7‑15 hours in the morning. The place of incident is 10 miles away from police station. Ordinarily I would not regard the F.I.R. filed at 7‑15 hours in the day after traversing a distance of 10 miles, as filed late and after some deliberation, but I have not been able to understand as to why the complainant had gone to P. W. Achar, before filing the F.I.R. Admittedly P.W. Achar is not the Nek Mard of this village and there is no reason for the complainant to go and consult as he lives one mile away. And therefore the allegation in the F.I.R. shall have to be scrutinised with some caution. I find that the F.I.R. mentions that the gun was produced by the complainant at the police station and even the number of the gun is mentioned in the F.I.R. is No. 109640, but the complainant in his statement in Court deviated from the F.I.R. and stated that he produced the accused, gun, cartridges and bullocks before them when the police came to the vardat. Even the mashirnama of the recovery of the gun says and the I.O. has also stated the same thing. This is a surprising contradiction from the position taken by the prosecution in the F.I.R. and I cannot understand as to what for this contradiction has been made. More particularly when the complain ant had clearly stated before the I.O. that he had secured the gun from the accused and he produced the same and lodged his report which statement had been admitted by P.W. 6 Ali Bux I.O. Another important contradiction made by complainant Mir Hassan is that he had asserted in his cross‑examination that he did not previously know Pir Ali Mardan Shah, taut he was confronted with his statement Exh. 16 made before the Assistant Sessions Judge where he had admitted that he was a disciple of Pir Ali Mardan Shah. This is an important contradiction brought out by the defence in view of the fact that the defence had been contending all along that the prosecution had been engineered by Pir Ali Mardan Shah with whom accused had been previously employed but had been dismissed by him from service and that Pir was annoyed with the accused. Even the gun that has been produced in the case belongs to Pir Ali Mardan Shah as admitted by I.O. and there was a prosecution launched against the accused under section 380, P.P.C. on account of the theft of that gun which had been found to be missing by complainant Abdur Rasool in that case but no F.I.R had been lodged in respect of the theft of that gun till this case was registered against the present appellant and the gun was shown to have been recovered from him. The discharge order in respect of that theft case has been seen by me. Even in that case the present appellant had alleged false involvement at the instance of Pir Ali Mardan Shah. 1n that case P.W. Abdur Rasool, P.W. Piral, P.W. Mardan Shah and P.W. Haji Rahib had been examined, but it was held by the first class Magistrate that there was absolutely no ocular evidence against the accused in respect of theft of that gun and he was discharged. The same I.O. S.H.O. Ali Bux was the Investigating Officer in that case of theft of gun and he had been given up by the prosecution. The accused was discharged in that case and I may note here in respect of that case that Pir Ali Mardan Shah the witness in that case had in reply to a question from the counsel of accused admitted that he knew. Mir Mohammad Khoso. Mohammad Siddiq, Abdul Ghafar anti Shaman and he had further stated that these 4 persons were his followers and respond to his call. He had also admitted that the present appellant, who was accused in that case of theft of gun, had remained as servant of his Kamdar at his dera and the accused had been turned out by his Kamdar. Such being the position, the denial of the complainant that he did not know Pir Ali Mardan Shah is rather damaging to his deposition as denial seems to be with the purpose of avoiding the involve ment of Pir Ali Mardan Shah in the case, but since the complainant had admitted the position before Assistant Sessions Judge, therefore that denial has merely condemned him and he cannot be regarded as a witness who is telling the truth. Even in respect of production of the gun before the police at the vardat there is some discrepancy in the statement of P.Ws. The complainant says in cross‑examination that he produce, the gun in his house while Mashir Mohammad Achar P. W. 1 has admitted in his cross‑examination that the gun was produced at the otak of Mohammad Sodhar and not at the police station. The complainant has stated in the cross‑examination that they did not catch hold of the accused: from the link road but the other P.Ws. particularly Mohammad Siddiq, have admitted that he was caught on the Katcha Road.

Mohammad Siddiq has admitted in cross‑examination that the accuser was :bout 50 paces away when they first saw them and he was caught of the katcha road, and therefore the second shot which the accused alleged to have fired could have been fired only at this place where the present appellant was captured, but I find that the vardat is shown to be in the house of the complainant and even the two empties are shown to have been recovered from that vardat. The recovery of the 2nd empty from the house is not explainable. This witness Mohammad Siddiq has denied that he was the follower of Pir Ali Mardan Shah, but I find from the certified copy of the deposition of Pir Ali Mardan Shah, to which I have referred earlier, that Ali Mardan Shah has admitted that Mohammad Siddiq was his follower and responded to his call, therefore, the suppres sion of this relationship by this P.W. makes his deposition doubtful. This witness has again contradicted himself by saying that he did not know if the accused was turned out by the Pir from service but Exh. 20 which is extract of his statement before the Assistant Sessions Judge says that accused Umer was employed by Pir Ali. Mardan Shah and was removed from the employment. Therefore, this is again an important contradiction made by P.W. Siddiq. This P.W, Siddiq has further contradicted his lower Court deposition Exh. 12 where he stated that the complainant took the gun when he went for lodging the F. I. R. but in the trial Court he stated that the complainant did not take the gun with him to the Police Station. Therefore this witness also has not spoken the whole truth. Similarly in case of P.W. 4, Shaman I find that he contradicted himself when he said in cross‑examination that it was moonlit night while before the Assistant Sessions Judge he stated that it was a dark night Exh. 18. This witness Shaman has clearly stated that the accused fired at the P.Ws. and they surrounded the accused and in cross‑examination he had stated that they caught the accused at distance of 5 to 10 paces from the link road which was about 50 paces away from the village, therefore, the firing of the second shot could not be in the house of the complainant and the recovery of the two empties at the house of the complainant becomes rather doubtful. This witness like other, had denied that he was the follower of Pir Ali Mardan Shah, but Pir Ali Mardan Shah had admitted that position in the other case of theft Exh. 30 that Shaman was also his follower and responded to his call. About this crucial aspect of the case this witness hay; definitely contradicted himself and the same was probably done to avoid the involvement of Pir Ali Mardan Shah. This witness is the immediate neighbour of the complainant and is on visiting terms with him. He had stated that the accused and the property were not in the Otak of Mohammad Sodhar when the police arrived at the vardar, while the mashir Achar, had stated so and therefore there is apparent contradiction in this respect in the two statements. The mashir P.W. I Achar has admitted he was a resident of a village one mile away from that of the complainant and therefore there is no reasons for the police to make him as a mashir. This witness has stated that the two empties cartridges were produced by complainant to the police at the vardat, but Exh. 8, of which he is mashir shows that two empties of the shell were lying at the vardat. therefore there is apparent contradiction between the mashirnama and the oral statement of this P.W. He had admitted that the complainant had come to him before lodging the F. I. R. He had denied in the trial Court that he was called by the police from Mehar town but he was confronted with Exh. 10, extract from his lower Court deposition where he had admitted that police had taken him from Mehar Town. This is all the more worse as Mehar Town is 10 miles away from the vardat and the vardat is found to be in a village where there are many persons residing. This witness therefore seems to be having a great deal of intimacy with the complainant and he seems to have accompanied the complainant to the police station and has then accompanied the police to the vardat. I am therefore reluctant to rely upon his evidence. P.W. Ghulam Ahmed who was the other mashir of the vardat has clearly stated in his examination‑in‑chief that the police did not inspect the vardat in his presence and therefore the recovery of empties front the vardat is not proved. He has further condemned the prosecution troy stating that all the mashirnama was prepared in the otak of Mohammad Sohdar, while the other mashir Achar and the I. O. and complainant with them were prepared at the vardar. This witness is therefore worthless. The I.O. Ali Bux P.W. 6, had stated at the trial Court that complainant produced the gun before him at the vardat. While this very officer had recorded the F. I. R. Exh. 14, where he had clearly mentioned at the end of the F. I. R. that the gun was produced by the complainant bearing No. 109640. I have dealt with his deposition in the previous part of the judgment, and I find that he has made so many contradictions that he it not worth being relied upon. He had investigated the other case of theft against the present appellant, but he could not even say as to whether Abdur Rasool was Kamdar of Pir Ali Mardan Shah but in his lower Court statement Exh. 25, lie had admitted that Abdur Rasool Kumdar of Pir Ali Mardary Shah has figured as a complainant. He was the Investigation Officer in this case and yet he was not in a position to give explanation as to why the present appellant was not produced for remand within 2,1 hours. He admitted that Pir Ali Mardan Shah was the owner of that gun and the licence was also in the name of Pir Ali Mardan Shah.

In this state of evidence it would not be safe to uphold the conviction of the appellant. Another important thing which has been worrying m:: is that the gun recovered was the single barrel gun and yet it was shown to have been fired from twice, therefore. it was evidently opened and one empty could have fallen in the house of the complainant, but the other empty could not be found at the house of the complainant as the accused was caught 50 paces away where he was alleged to have fired second fire and where he was apprehended by P.W. Shaman. It was at the spot that the second empty could have been found, but it was shown to have been recovered at the house of the complainant, therefore, the entire story of running away of the accused is not corroborated. Moreover I find that the personal search of the accused did not show live cartridges with him and in that case why should the accused open this gun second time and eject the second empty from this gun and provide an opportunity to the P.Ws. to apprehended him in that interval. Moreover the empties are not even mentioned in the F. I. R. and hence their presence in the house of the complainant is not free from doubt.

In view of these circumstances I set aside the conviction of the appellant in respect of both the cases under section 312, P. P. C. as well 13-D of Arms Ordinance and 1 therefore direct his bail bonds may be cancelled as he is already on bail.

Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.