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Criminal Appeal No.190 of 1986, heard on 22nd February, 1987.

---Ss.154 & 161--F.I. R. registration of--Investigation started on F.I.R. lodged by accused himself regarding incident and death of deceased and while it was in progress father of deceased appearing at police station and getting recorded yet another F.I.R. giving different version of incident--Statement of deceased's father made during investigation, held, could not be treated as F.I.R. but at the best a statement under S.161, Cr.P.C.

P L D 1979 Lah. 263 and 1983 S C M R 436 ref.

---S.302--Recovery evidence--Admittedly no empty secured from place of Vardat--Recovery of empty from barrel of gun, held, would not give rise to any presumption that it was used in crime.--[Recovery].

---S.302--Qanun-e-Shahadat Order (10 of 1984), Art. 38--Recovery evidence--On point of recovery of alleged crime gun one of Mashirs could not be found while other one not examined--Sole evidence of S.H.O. held, could not be relied upon, in circumstances.

---Art.38--F.I. R., probative value of--F.I. R. lodged by accused himself, giving details of incident, leading up to death of deceased- Such F. I . R . having been disowned by accused it could not be used as extra-judicial confession of accused, being hit by Art.38 of Qanun-e-Shahadat Order, 1984.

P L D 1965 S C 366 and 1977 PCr.LJ 434 ref.

---S.302--Evidence, appreciation of--Prosecution witnesses of last seen evidence interested and near relations of deceased and their evidence contradictory, absurd and also in conflict with medical evidence--Motive advanced by prosecution absurd and unreliable--Statement of accused forming basis of F.I. R. disowned by him and same also found inadmissible in evidence, being inculpatory in nature Deceased admittedly died as a result of gunshot injuries but nothing beyond that to connect accused with offence--Conviction and sentence set aside, in circumstances.

1980 S C M R 225; P L D 1966 Lah. 383; 1976 P Cr. L J 17; P L D 1973 S C 23; P L D 1965 S C 366 and 1977 P Cr. L J 434 ref.

Muhammad Hayat Junejo for Appellant.

A.G. Mangi,Asstt. A.-G. for the State.

Dates of hearing: 15th and 22nd February, 1987.

The appellant Shamsuddin son of Adam Brohi and co-accused Muhammad Hassan son of Ghulam Muhammad Brohi were tried before IInd Additional Sessions Judge, Jacobabad, under section 302/34 for committing murder of one Amir Bux on 21st June,' 1981. The learned trial Judge acquitted co-accused Mohammad Hassan, and has convicted the present appellant under section 302 P.P.C. and 13(e) of the Arms Ordinance. Under section 302 P.P.C. the appellant has been convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.5,000 or in default in payment of fine to suffer further R.I. for one year, and under section 13(e) of Arms Ordinance he has been sentenced to suffer R.I. for two years. The two substantive sentences have been directed to run concurrently. So far the fine was concerned it has been ordered that if the fine is recovered from the appellant, Rs.4,000 shall be paid to the heirs of the deceased as compensation. Being aggrieved with the above judgment and sentence the appellant has filed the present appeal.

1. The incident took place on 26-6-1981 at 1-30 p.m. and the report of the incident was lodged by appellant Shamsuddin on 26-6-1981 at 8-15 a. m. at Police Station Maula Dad, District Jacobabad. It was recorded by S.H.O. Mr.Sanaullah. The F.I.R. reads as under:-

"I have my own Pacca built house facing towards south which comprises of two rooms. I alongwith my family reside in the house. To the west of my house there is a Pacca built house of my uncle Ghulam Muhammad s/o Zangi Khan Brohi. In between our two houses there is open street from where is passage for our entrance. My house is not surrounded by any hedge or wall or compound wall. As usual I slept on the cot -in the courtyard of my house and locked both the rooms. One of my iron box was lying on the corn bin (Gundri) in the verandah. On 26-6-1981 at about 1.30 a.m. I woke up on a sound and saw one person with my iron box in his hand who came from inside of my house and passed by my side, I got up immediately and after raising cries of thief, thief, picked up my loaded unlicensed gun which was lying under my pillow and challenged the thief that he could not escape. The thief also challenged me, when the thief reached at the Southern beginning of the street of our houses I fired my gun direct at him to release my iron box which fell down from his hand in the street, and the thief fell down after covering some distance in the street. On my cries and gun report villagers namely Ghulam Muhammad s/o Zandi Khan Brogi. (2) Mohammad Hassan s/o Ghulam Mohomed Brohi (3) Naseer Mohd. s/o Ghulam Mohd. Brohi (4) Mohammad Sharif s/o Mullan Bahram Brohi and others came running and told that they heard sound of the steps of a person from Otaq side who was running towards north. Due to darkness they could not identify him, due to darkness, nor can they identify him on seeing him. On lighting match stick, we identified the fallen thief, who was Maro alias Amir Bux s/o Jan Baig by caste Brohi resident of village Jan Baig Brohi. Who had gunshot injury near his left buttok and was writhing and expired after some time within our sight. The stolen box was lying in the street. I narrated the facts to the witnesses coming there, who also disclosed that they have also seen the thief running, whom they could not identify and saw him running away in darkness. Thereafter I went to my house, saw that both the rooms were locked and the iron box lying on the carn bin (Ghundri) was not there. It was stolen by the thief who had received gunshots injuries, on which the box fell down from his hand. Then I kept unlicensed gun in the eastern room of the house. Leaving my relatives at the dead body of accused Maro, I have come here to 13dge the report that Maro trespasses in my house at night and after stealing iron box containing following articles was going away. In order to release the iron box which was my property, I fired at him with unlicensed gun and got try property released. The thief Maro Brohi and stolen iron box are lying near my house in street. I will produce the inlicensed gun at my house. The articles lying in my iron box are described below. I complain, investigation be made "

2. After recording the F. I. R. lodged by the appellant Shamsuddin, the S.H.O. visited Vardat at pointation of appellant Shamsuddin. The Vardat was situated in-front of the room of the house of appellant, situated in village Zangi Khan Brohi, District Jacobabad. The S. H.O. found dead body of Amir Bux and some blood stains at Vardat. He also found a bag, a look, two broken torches, and one cap at the Vardat. All these articles were secured and blood-stained earth was sealed. Such Mashirnama and inquest report were prepared by him in presence of Mashir Nabi Bux and Mohomed Amin Brohi. The Mashirnama of Vardat and inquest report have been produced as Exs.P2 and P-4. The S, H.O. also prepared the Mashirnama of dead body in presence of the same Mashirs which is produced as Ex.P/5. The appellant Shamsuddin then produced gun from his house alleged to have been used by him. It was D B B L Gun. The gun contained one empty cartridge in one of its barrel. The applicant also produced two live cartridges along with which was secured under Mashirnama Ex.P/6. The S.H.O. then arrested the appellant. Since the appellant had no licence for the gun he was arrested under section 13(d) of the. Arms Ordinance. Then S.H.O. returned to the police station where he lodged report on behalf of the State under section 13(d) of the Arms Ordinance, which has been produced as Ex. P/5.

3. At about 12.45 p. m. one Jan Baig son of Amir Hassan father of deceased Amir Bux appeared at the same police station and lodged his report which reads as under: -

I, Amir Bux, Maro, Khair Bux, Fakhruddin and Mirzan uses to reside together in the same house. My son Amir Bux is adult, who is driver of Bus No.276 Q.A. My brother Khair Bux and son Fakhruddin run a shop in the village. In the morning Amir Bux used to go to Jacobabad in the Bus and return in the evening after parking the same at Kunry 'Shakh', and during night he used to reside in my house. Yesterday on 25-6-1981 in the evening I had gone to Jacobabad for some work, where I remained for the night. Today at about 7.00 O'clock my son Fakhruddin came alone at Jacobabad, and informed me that last night at about 8.00 O'clock he, Mir Hassan son of Budhal Brohi, Bahadur son of Budhal Brohi resident of our village, Karim Bux son of Gul Dad Brohi No Deh Koriji, brother Amir Bux and uncle Khair Bux all were doing KATCHARI at our shop. In the mean-time Shamsuddin son of Adam Brohi and Mohomed Hassan s/o Ghulam Mohomed Brohi both r/o village Zangi Brohi came at our shop and sat along with them. Amir Bux asked them for the payment of Rs.1,000 which were out standing against them, whereupon at 1st they exchanged hot words with each other, but later on Shamsudin and Mohd. Hassan both told Amir Bux to go with them, as they want to make payment, as he was demanding the amount daily. Then Amir Bux, Shamsudin and Mohammad Hassan went together to village Zangi Brohi, it was about 2030 hrs. After their departure, they continued sitting there, some body brought meals from the house, which they were taking when at about 2200 hrs they heard gun report coming from village Zangi Brohi, but they did not know as to how there was gunshot report. In the following morning they came to know through rumour that during night Shamsuddin and Mohammad Hassan have murdered Amir Bux by opening gun fire on him and the dead body was lying by the side of their houses. Hearing such news he and Khair Bux went there to see the dead body, where they found dead body of Amir Bux bismeared with blood, who had received gunshot injury and was lying in the street near the house of Shamsuddin, and now he has come to inform me. On hearing the above facts narrated by Fakhruddin, I came to the village where Bahadur. Mir Hassan, Khair Bux met me, who also narranted the same facts. Thereafter, I went to Zangi Brohi village and found my son Amir Bux lying dead with gunshot injuries. Then I brought the dead body of deceased Amir Bux on a cot and kept it under the shadow of Neem tree standing in front of OTAQ of Ghulam Mohd. Thereafter, I have come here by foot to lodge the report that the accused Shamsuddin and Mohammad Hassan had taken Amir Bux along with them to their house on the pretext of returning loan of Rs.1,000 and murdered him by firing with gun. I am complainant, investigation be made."

4. After recording the F.I.R. of Jan Baig the S.H.O. Sanaullah accompanied the complainant to the Vardat and prepared the Mashirnama in presence of Ali Murad and Mohammad Amin. The Mashirnama has been produced as Ex. P2. According to the S. H.O Mashirnama Ex.P/2 was the Mashirnama prepared at the pointation of complainant Jan Baig, while Mashirnama Ex.P/8 was prepared at the pointation of appellant Shamsudin. He then examined P. Ws. Khair Bux, Fakhrudin, Karim Bux, Bahadur, and Mohammad Hassan. On 28-6-1981 co-accused Mohammad Hassan was arrested in presence of Mashirs Nabi Bux and Muhammad Amin. On 10-7-1981, Ghulam Brohi the retainer of the run produced by the appellant Shamsudin, produced licence of his gun which was secured in presence of A.S.I. Ghulam Rasool and W. H, C, Gul Bahar. During the 'Investigation the S.H.O. found that the crime No.29/1981 appeared to be false, therefore, he forwarded both cases for opinion to the S.P. along with the statements recorded by him in both cases, as according to him witnesses cited by appellant Shamsudin had also supported his version.

That the S.P. opined that the case No.29 of 1981 filed by the present appellant be disposed of as untraceable and, therefore, it was not challenged. However, the appellant along with co-accused Mohammad Hassan were sent-up before the Court.

5. The S. H.O. had sent the blood-stained earth, gun and empties allegedly produced by the appellant, to the chemical examiner and ballistic expert, and the reports which were in positive have been produced as EX.P/9 and P-10.

6. That on 26-6-1981 Dr. Ghulam Mustafa had conducted post-mortem examination on the dead body of Amir Bux alias Maroo son of Jan Baig and found the following injuries on his dead body:-

(1) Circular wounds each measuring about 2 c.m. in diameter with lacerated and inverted edges over back of left thigh at its upper. It was the wound of entry.

(2) A wound 1 c. m. in diameter with lacerated everted margins just about left popliteal Fossa. This was the wound of exit injury No.1.

(3) One lacerated wound 1 c. m. in diameter with everted edges just below the popliteal Fossa. Being the wound of injury No.1.

On the internal examination of the dead body he found as follows:

(1) Femeomoral and popliteal blood vessles were found punctured at the site of injury Nos. l, 2 and 3.

(2) The stomach was found normal. It was empty.

(3) All other vessels and organs of the dead body were found normal.

According to the Doctor the injuries Nos.l and 2 were ante-mortem and appeared to have been caused from the discharge of fire-arm such as shotgun. The range from which it was fired would be about six feet, probable time between injuries and death was about thirty minutes, and between death and post-mortem about 12 hours. He has produced the post-mortem report as Ex.P/3.

7. The appellant and his co-accused pleaded not guilty and denied the allegations. Their stand was that the case was false and was result of enmity. Appellant Shamsuddin denied the filing of. F. I. R. of crime to 29/ 1981 and also denied the production of unlicensed gun and cartridges. The learned trial Judge while relying upon the evidence of motive, last scene evidence of p.w. Fakhruddin, Khair Bux and Bahadur, extra-judicial confession by way of F.I.R. No.29/1981 lodged joy the appellant Shamsuddin, the evidence of recovery of dead body and gun and medical evidence, convicted the appellant while the co-accused Mohammad Hassan was acquitted.

I have heard Mr. Mohammad Hayat Junejo, learned counsel for the appellant, and Mr.Abdul Ghafoor Mangi, learned A.A.-G. for the State.

The learned counsel for the appellant has assailed the judgment of the trial Court on the following grounds:-

(1) That the F.I.R. lodged by Jan Baig could not be treated as F.I.R. as it was recorded during the investigation, and since the investigation had already started on the alleged F.I.R. lodged by appellant Shamsudin, there could be no two F. I. Rs. Reliance has been placed on P L D 1979 Lah. 263 and 1983 S C M R 436.

(2) That, the gun allegedly produced by the appellant was licensed gun of his grandfather and since no empty was recorded from the Vardat the positive report of ballistic expert was of no use to the prosecution and it could not be said that the deceased was killed with this gun.

(3) That, the motive alleged by the prosecution was unnatural and false.

(4) That, the evidence of last scene was equally unreliable and in conflict with medical evidence. The conduct of P.Ws Fakhrudin, Bahadur and Khair Bux showed that in fact the evidence of last scene was false. He has further argued that these witnesses were interested being near relations of the deceased.

(5) That the medical evidence could only prove that the deceased had died due to gun injury and nothing beyond it. Moreover, it was in conflict with ocular evidence on the point of time of death.

6. That, the F.I. R. allegedly lodged by the appellant Shamsuddin being in the nature of confession made before the police officer was inadmissible in evidence being a statement before police officer.

7. Mr.Abdul Ghafoor Mangi learned A.A.-G. appearing for the State has contended that the F.I. R, lodged by the appellant could be treated as extra-judicial confession, and the other pieces of evidence relied upon by the trial Judge were sufficient to sustain conviction of the appellant.

8. So far the first contention of Mr. Muhammad Hayat Junejo learned Advocate of the appellant is concerned, it is the prosecution case that the investigation was started on the F. I. R. lodged by the appellant and it was in progress when Jan Baig father of deceased appeared at police station and his statement was recorded in 154 Cr.P.C. Book. Therefore it being statement made during the investigation, could not be treated as F. I. R. It has been held in Ghulam Sidik v. S.H.O. Saddar Dera Ghazi Khan and others P L D 1979 Lah. 263. That the primary purpose of the F.I. R is to inform about the commission of a cognizable offence, which a police officer is empowered to investigate u/s 156 Cr-P.C. All other information with regard to the occurrence coming out later in point of time have to be taken down as statements, of those persons before the police under section 161 Cr.P.C. In Kaura v. The State and others 1983 S C M R 436 it was held that once the case was registered in respect of murder of Haji Jiwan the registration of a fresh report notwithstanding the divergent version contained therein was not called for. In view of this factual and legal position F.I. R. lodged by Jan Baig could not be treated as F. I. R.

9. With regard to recovery of gun from the appellant and report of Ballistic Expert the contention was that it was licensed gun of grandfather of the appellant, and since no empty was recorded from the Vardat the report of the expert could not be used as a piece of evidence against the appellant. Admittedly no empty was secured from the Vardat; and the recovery of empty from the barrel of the gun will not give rise to any presumption that it was used in the crime. The gun belongs to Zangi Khan and its licence was produced by one Ghulam Mohammad Brohi mentioned as retainer, before the investigating officer. On the point of recovery Mashir Mohammad Amin could not be found and, therefore, he was not examined. There is nothing on record to show as to why co-Mashir Nabi Bux was not examined. In this view of the case the sole evidence of S. H.O. cannot be relied upon on this point. With regard to motive it has been pointed out that the deceased was plying a bus and there is no evidence that he had any concern with the shop which was being run by his brother and uncle. Moreover no document or account book has been produced to show that the accused were actually indebted to Fakhrudin and his uncle. If there was exchange of hot words between the deceased and the accused the P.Ws. would not have allowed the deceased to accompany the accused. In view of the above position the motive advanced by the prosecution is absurd and cannot be relied upon. Moreover, this motive has come from the mouth of the same witnesses who are on one hand related to the deceased, and on the other hand unreliable, therefore, it cannot corroborate ocular evidence. Reliance is placed on 1980 S C M R 225.

10. The evidence of last seen is provided by P. Ws. Fakhrudin, Bahadur and Khair Bux PW. Khair Bux is uncle of the deceased while P. W. Bahadur is related to the deceased as admitted by Jan Baig. Evidence of P.W. Fakhruddin is that on the night of incident he, P. Ws. Khair Bux, Bahadur, Mir Hassan, Karim Bux and deceased Amir Bux were sitting in front of their shop, when appellant Shamsuddin, and co-accused Muhammad Hassan came from village Zangi and sat with them. His brother Amir Bux demanded Rs.1,000 outstanding against them on account of the goods purchased by them from the shop, on which they were annoyed and exchanged hot word: with Amir Bux. When accused were returning to their village they told Amir Bux to accompany them to receive the payment which was demanded by him repeatedly. On this his brother went along with the accused. At about 10.00 p.m. while they were taking meals, they heard a gunshot report from the side of the village of the accused, but did not hear any cry or commotion thereafter. In the morning they came to know from the passerby as a rumour that the deceased Amir Bux was murdered. On receipt of the above information complainant and Khair Bux went towards the village of the accused and found deceased Amir Bux lying dead in a street near the house of the accused. He had bled from a gunshot wound which was on his left foot. He left P.W. Khair Bux there and went to Jacobabad to inform his father Jan Baig, who had gone to Jacobabad a day prior. He apprised him of the facts of the incident. Then both of them came to the village where Khair Bux and Mir Hassan met them. They also gave the same facts to Jan Baig. Thereafter, they went to the village of the accused, and showed the dead body to complainant Jan Baig. The dead body was taken from the ground and put on the cot, and kept under shadow. The complainant then left for report. According to him police had come at the Vardat but his statement was not recorded. In cross-examination he has stated that the shop was being run by him and his uncle Khair Bux. The amount of Rs.1,000 was outstanding against the accused since about a year, before the incident as the .accused had purchased goods from their shop on loan. He has further stated that he had noted those article in a book and had shown the book to the police but the same was not secured by the police. According to him the accused had come on that night to purchase some household articles but before they could purchase the goods, there was exchange of hot words between the accused and his brother. He has further stated that his brother had gone with the accused willingly for taking payment and that none of them had gone towards the village of the accused after departure of Amir Bux with them. He voluntarily stated that because we did not apprehend any danger. He was a married person and that they did not inquire from the house about the return of deceased, because he had gone with the accused within their sight.

11. The evidence of P.Ws. Bahadur and Khair Bux is also similar. The case of P.W. Fakhruddin was that on hearing the rumour he and Khair Bux went to the village of the accused and found Amir Bux lying dead. That he left P.W. Khair Bux there and went to Jacobabad and informed his father.

12. The evidence of Khair Bux on this point is that he and Fakhrudin went towards the village of accused and found Amir Bux lying dead in the street. They returned back to their village. He sent Fakhrudin to inform Jan Baig at Jacobabad. The evidence of P. W. Bahadur is that on hearing rumour in the morning regarding murder of Amir Bux, he, Khair Bux, Fakhrudin, Mir Hassan and Ali Murad went towards the village of accused where they found dead body of deceased Amir Bux lying in a street near the house of the accused. There were many people available here, and they were not allowed to stay there. Therefore, they returned to their village. In the morning Jan Baig came from Jacobabad and he was given facts of the incident.

According to Doctor Ghulam Mustafa he started post-mortem on deceased at 3-00 p.m. and finished it at 4.30 p.m. the time which elapsed between death and post-mortem according to him was about 12 hours.

13. It is clear from the above facts that apart from the fact that the P.Ws. are interested being near relations of the deceased, their evidence is contradictory, absurd, and in conflict with medical evidence. It is the case of P.Ws. Fakhrudin and Khair Bux that they were running the shop from which the accused had made purchases on loan, and deceased Amir Bux used to play s bus and had no concern with the shop or its running. Therefore, when Amir Bux had nothing to do with the business of the shop and it was being run by Fakhrudin and Khair Bux, the story that Amir Bux demander: payment of dues from the accused was on the fact of it absurd, specially when Fakhrudin and Khair Bux were present there. That when there was exchange of hot words between accused and Amir Bux, the P.Ws. would not have allowed Amir Bux to accompany the accused for recovery of loan. The conduct of the witnesses that when they heard gunshot report from the side of the village of the accused, they did not care to find out as to how and why the firing took place, and the fact that they did not make inquiries from the house of Amir Bux whether he had returned to the house during night, goes a long way to show that their story was false and concocted. Moreover, their evidence that they had heard gunshot report at 10.00 p. m. is belied by medical evidence, inasmuch as according to the medical officer the death of the deceased occurred about 12 hours from the time of post-mortem which he started at 3.30 p.m., and therefore the incident must have taken place at 3.00 or 4.00 and not at 10.00 p. m. as alleged by the P.Ws. Another important factor which goes against the prosecution is lodging report by Jan Baig at 12.45 p. in, In fact there was no need for the P. Ws. to wait for Jan Baig and it appears that on hearing reumer in the morning after ascertaining the fact of death of deceased Amir Bux, the entire time was consumed in conducting a theory to implicate the accused. In this conclusion I am fortified by P L D 1966 Lah. 382, and 1976 P Cr. L J 17. The fact that the medical evidence is in conflict with ocular evidence. It has been held in P L D 1973 S C 23 that "Evidence Ocular conflicting with medical evidence--Reliance on ocular testimony. Not safe. "

In view of the above discussion the evidence of P. W Fakhrudin, Bahadur, and Khair Bux on the point of last seen unreliable.

14. The medical evidence of course shows that the deceased died due to gunshot injuries, but nothing beyond it. It does not prove that it was the accused who fired at deceased. Moreover, in view of the fact that the medical evidence instead of supporting prosecution version has contradicted it, it could not be used as a corroborative piece of evidence.

15. Now we are left only with the F.I. R. lodged by appellant Shamsudin. In his statement u/s 342 Cr.P.C. he has denied the lodging of this report, and under no circumstances, it could be used as extra-judicial confession as argued by the learned A . A . -G . D Mr. Abdul Ghafoor Mangi, inasmuch as it was made before a police officer, and is hit by Article 38 of Qanun-e-Shahadat. Even if the confessional part of the F. I. R. is excluded, and the remaining part is considered as admission under Article 31, of Qanun-e-Shahadat, there is no other evidence to corroborate it. Mr. Mohammad Hayat Junejo the learned counsel for the appellant has relied on P L D 1965 S C 366 to show that the alleged F.I.R. was inadmissible in evidence. That the decision cited by the learned counsel does support his contention. In PLD 1965 S C 366, it has been held "Evidence Act- Section 25--Accused reporting his own crime (murder) to police- Statement of accused in F.I..R. not admissible on account of its inculpatory character.

16. In 1977 P Cr. L J 434 it was held by a. Division Bench of this Court that:-

"The statement of the appellant incorporated in the F:I. R. which is in the nature of confession is inadmissible under the law and cannot, therefore, be considered, and in view of the details of the place on incident and the fact of murder being already within the knowledge of the S.H.O there was in fact no discovery of these facts made by a appellant after his arrest. The evidence of S. H.O. on this point is also of no material help to the prosecution to support the case against the appellant."

17. The result of the above discussion is that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. His appeal, is therefore, accepted and the conviction and sentence is set aside. He shall be released forthwith if not required in any other case. The fine if paid, shall be refunded to the appellant.

S.G.D./S-48/K. Appeal allowed.

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