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Petition for Leave to Appeal No. 408 of 1979, decided on 27th February, 1984.

(On appeal from the judgment of the Lahore High Court, dated 8th July, 1979, in Criminal Appeal No. 888 of 1978 and Murder Reference No. 237 of 1978).

‑‑ S. 302/34‑ Criminal Procedure Code (V of 1898), S. 417‑Appeal against acquittal‑F. I R. lodged by father of deceased who was not eye‑witness‑Names of only three accused mentioned in F. I. R. as culprits‑Three more persons added at about or soon after recording of F.I. R. in a supplementary statement of first informant on pretext that these names had inadvertently been omitted by official who recorded F. I. R.‑Eye‑witness stating that all six accused participated in occurrence‑Official recording F. I. R. confirming that he inadvertently omitted to write names of three accused and then had recorded a supplementary statement‑Same mistake also occurring in inquest report, which official, who recorded F. I. R. admitted was prepared at time when he knew that six accused had been charged‑Two strong possibilities that first informant did not disclose names of three persons at time of recording of F. I. R. of officer concerned dishonestly omitted to record them notwithstanding same having been mentioned by ‑informant neither investigated as independent matters in connection with conduct of official nor trial Court attached due importance to same‑Benefit of doubt, held, rightly given to all the accused so far as eye‑witness account was concerned.‑[Benefit of doubt‑Appeal against acquittal].

‑‑ Art. 185 (.3)‑Penal Code (XLV of 1860), S. 302/34-Criminal Procedure Code (V of 1898), S. 417 & 540‑Appeal against acquittal Circumstances relating to conduct of accused and circumstantial items of evidence against him together with, examination of general question as to who should be held to be responsible (police or complainant) for state of affairs vis‑a‑vis recording of F. I. R., and, whether some questions arising in case could lawfully be ordered to be investigated by independent agency at appellate stage by Supreme Court ; and/or whether any action under S. 540, Part II, Cr. P. C., for recording essential evidence was necessary, calling for serious examination‑Leave to appeal granted in circumstances.

‑‑Art. 185 (3)‑Penal Code (XLV of 1860), S. 302/34‑Criminal Procedure Lode (V of 1898), S. 417‑Appeal against acquittal‑Cases Billmoria alias Muhammad Hussain v. The State P L D 1958 S C 313 ; ' Abdus Samad v. The State P L D 1964 S C 167 ; Rehmat alias Rhaman v. The State P L D 1977 S C 515 requiring serious consideration regarding quantum of material/evidence, in a case where after rejection of ocular evidence only circumstantial material was to be considered‑Leave to appeal granted.

‑--S. 302/34‑Criminal Procedure Code (V of 1898), S. 417‑‑Appeal against acquittal‑‑Testimony of eye‑witnesses not bringing home guilt to accused‑Court may examine circumstantial evidence available against him-‑Court, if found that circumstantial evidence was wholly incompatible with innocence of accused, conviction could be based on such circumstantial evidence.‑[Appeal against acquittal].

‑‑ Art. 185 (3) ‑Penal Code (XLV of 1860;, S. 302/34‑Criminal Procedure Code (V of 1898), S. 417‑Eye‑witnesses failing to establish case against accused‑Circumstantial evidence in case requiring re examination to see whether accused could be convicted only on basis of certain pieces of such evidence available against him on record‑Leave to appeal granted:‑[Evidence‑Appeal against acquittal.

D. M. A wan, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.

M. M. Saeed Beg, Advocate Supreme Court and S. Ijaz Ali, Advocate‑on- Record for Respondents.

Date of hearing‑ 9th January, 1984.

Leave to appeal has been sought from judgment dated 8‑7‑1979 of the Lahore High Court ; whereby in a murder case the conviction of the respondents and sentence of death awarded to Nawab and Gulzar accused and life imprisonment to Siraj Din were set aside and they were acquitted. The motive for the crime was that the accused party felt annoyed with Muhammad Shafique (deceased) because he was instrumental in involving them in criminal cases including theft. During the investigation thereof two accused were detained by the police but were not released through a habeas corpus petition filed in the High Court. It is an admitted position that the parties were inimical to each other.

The occurrence took place on 10‑6‑1966 at about 7‑30 p.m. It was reported to the police on the same day at 9‑15 p.m. by the father of the deceased who is not an eye‑witness. In the F. I. R. only Gulzar, Siraj and Ghulam Hussain accused were mentioned as the culprits. Nawab, Munshi and Hanif accused were according to the prosecution case added at about or soon after recording of the F. I. R. in supplementary statement of the first informant on the pretext that their names had inadvertently been omitted by the Head Constable who recorded the F. I. R. All the six accused according to the version given by Abdul Majid an eye‑witness at the trial, had participated in the occurrence.

According to the medical evidence the deceased had suffered injuries caused by blunt and sharp‑edged weapon as also by firearm. Firearm injuries were said to have been caused by the accused with the revolver snatched from the deceased which was abandoned at the place of occurrence and was recovered subsequently.

Ghulam Hussain accused died prior to the trial Munshi and Hanif whose names had not been mentioned in the F. I. R. were given benefit of doubt and were acquitted. Nawab, Gulzar and Siraj respondents were convicted under section 302/34, P. P. C. and sentenced as noted earlier but they having been acquitted by the High Court, complainant has now sought leave to appeal.

Although according to Ghulam Hussain Head Constable, Wali Muhammad complainant mentioned the names of all the six accused to him when recording the F. I. R., he inadvertently omitted to write three of them and then had recorded a supplementary statement of Wali Muhammad wherein the said three names are also mentioned. But this explanation is far from convincing because the same so‑called mistake occurred in the Inquest Report, also, which Ghulam Hussain admitted, was prepared at the time he knew that six accused had been charged. Two strong possibilities cannot be excluded. Either Wali Muhammad did not disclose the names of three persons at the time of the recording of the F. I. R. or Ghulam Hussain dishonestly omitted to record them notwithstanding the same having been mentioned by Wali Muhammad. This aspect was neither investigated as independent matter in connection with the conduct of Ghulam Hussain Head Constable nor the learned trial Court attached due importance to it. The learned Judges of the High Court in these circumstances rightly gave the benefit of doubt to all the accused in so far as the eye‑witness account is concerned. Learned counsel for the petitioner has not been able to dilute the effect of the reasoning of the High Court in this behalf. According to the learned Judges, if Abdul Majid and Chiragh so‑called eye‑witnesses bad seen the occurrence they having met Wali Muhammad prior to his lodging the F. I. R., would have certainly informed him about all the assailants. Had they informed him about the assailant, he would have mentioned the names of all of them in the F. I. R. But three names having been omitted from the F. I. R. whatever the reason for this omission, the accused could not be denied the benefit regarding a possible inference that Abdul Majid and Chiragh had not seen the occurrence. That being so this petition cannot succeed on the basis of the ocular account given by the said two eye‑witnesses. Therefore, there is not enough evidence against Gulzar, Siraj, Munshi and Hanif accused, they were accordingly rightly acquitted‑some by the trial Court and the others by the High Court.

The case of Nawab, however, stands on a different footing. The High Court after rejecting the ocular account did not at all advert attention to the question whether circumstantial evidence was not enough against Nawab respondent for his conviction.

The following material is available on record, which tends to implicate Nawab:

‑‑Admittedly his name was included during the initial stages of the investigation (though not in the F.I. R.) as one of the culprits.

‑-The watch on the wrist of the deceased with broken glass had stopped at the time of attack on him. It stopped at 7‑25 p.m. The learned trial Judge correctly calculated the time of occurrence a being such that there was enough visibility.

‑‑-The appellant got himself medically examined a day prior to his arrest with a view to establish that he had no injury on his person on the plea that during the investigation of the case he had learnt that he was not only being named as a culprit but also as having suffered an injury on his thigh and he wanted to establish that there was no such injury. On the contrary it is the prosecution case that one of the culprits was seen waving his hand above his head during the occurrence indicating as if he had been hit. While giving benefit of doubt to the accused regarding eye‑witness account it cannot be ignored that both the prosecution and the defence projected the case at the trial that it had become known that one of the culprits bad been injured during the occurrence.

According to the medical evidence Nawab had a bullet injury which could be considered to be contemporaneous with the tune of occurrence.

‑-After the defence evidence produced by Nawab with regard to absence of any injury on his person is found false then the circumstance that he tried to create a piece of false evidence, might be considered against him.

--Nawab on the .one hand stated that he had no injury on his person, therefore, he got himself medically examined and a doctor took the courage of supporting him in Court as well but he himself admitted under section 342, Cr. P C., (statement) that there were two scars of healed injuries on his body‑‑be gave explanation of both of them and, he further added that he bad been bitten by a mare on his finger regarding which there was an injury on his body. This would belie the doctor produced by him in defence besides being admission that he had an injury.

--The explanation of Nawab, according to the doctor produced by the prosecution regarding injury, is false. It would need serious examina tion whether this false explanation and other items of conduct of Nawab could not be noted against him.

The X‑ray Report of the injury found on the body of Nawab is not on record. Amongst others the question as to who was responsible for omission and its effect would need examination.

--An investigator who reached the spot early next morning at 7‑00 a.m. immediately picked up a trail of blood from the place of occurrence. It was proceeding towards the house of the accused which is at a short distance from the place of occurrence.

--Siraj accused is the father of Nawab while Gulzar (deceased accused) was his brother.

--The weapons of offence were recovered at the instance of the accused. The effect whereof was excluded from consideration by the trial Court on a very cursory examination of the entire question of recoveries involved in this case. The relevant recoveries were made immediately on the morning next after the occurrence. To say that in all circum stances the traces of blood if found in the house of Nawab might have been removed, would not be reasonable to imagine.

--The investigator recovered earth, stained with human blood, from the house of Nawab accused that very morning. The trail of human blood from the place of occurrence according to the evidence on record could be due to the injury on Nawab as it had reached that point in the house of Nawab accused wherefrom the blood‑stained earth was picked up. None of the other co‑accused who were the inmates of that house are shown to have been injured in this occurrence. The foregoing material shows that Nawab had been injured on or about the time of occurrence. The presence of blood in the house of Nawab accordingly needs examination.

--Nawab was not available for arrest for nearly a month after the occur rence. Ghulam Rabbani, D. S. P. P. W. 14 who arrested him denied the suggestion that Nawab had presented himself voluntarily for arrest. He, on the other hand, arrested that it was due to his one effort that he arrested Nawab.

--Although Nawab had obtained a certificate from a doctor regarding absence of any injury on his person yet as noted earlier there are circumstances to show an inculpatory injury on his person. The abscondence in these circumstances for. nearly a month would have to be examined afresh vis‑a‑vis these peculiar features to exclude the possibility that Nawab accused had made himself scarce in order to see that the tell‑tale evidence of crime on his person in the form of injury, is no more available to the police through, of course, influx of time. But prima facie it appears he could not succeed because the injury statement Exh. P. O prepared by Ghulam Rabbani P. W. shows that this witness, apart from the subsequent affirmation from the doctor, had also seen "a freshly healed injury on the small finger of the right hand."

These and other circumstances relating to conduct of Nawab and the circumstantial items of evidence against him together with, the examination of the general question as to who should be held to be responsible (the Police or the complainant) for the state of affairs vis‑a‑vis the recording of F. I. R., and, whether some questions arising in this case can now lawfully be ordered to be investigated/re‑investigated by an independent agency and/or, whether, any action under second part of section 540, Cr. P. C. for recording essential) evidence is necessary, would call for serious examination.

The following cases which were cited at the bar would also need serious consideration regarding the quantum of material evidence, in a case where after the rejection of the ocular evidence only circumstantial material is to be considered. They are :

Billmoria alias Muhammad Hussain v. The State P L D 1958 S C 313 ; Abdus Samad v. The State P L D 1964 S C 167 and Rehmat alias Rahman v. The State P L D 1977 S C 515.

Accordingly leave to appeal is granted in this case against the acquittal of Nawab respondent only. The acquittal of Gulzar and Siraj respondents does not merit interference as they could be extended the benefit of doubt.

Non‑bailable warrants for the arrest of Nawab respondent, returnable to the District; Magistrate concerned, shall be issued.

I respectfully agree with my learned brother that even if the testimony of the eye‑witnesses does not bring home the guilt to the accused, the Court may examine the circumstantial evidence available against him and if it finds that the circumstantial evidence wholly incompa tible with his innocence, his conviction may be based on it. The evidence in the present case, therefore, needs re‑examination, in the light of the above‑said principle, to see whether Nawaz respondent could be convicted only on the basis of certain pieces of circumstantial evidence available against him on the record of this case.

M. Z. M. Leave granted.

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