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Criminal Appeal No.85 of 1984/Rawalpindi, heard on 24th March, 1987.

---S.302--Circumstantial evidence--Value of--Recovery-of pistol and empty from accused--Recovery effected 3 days after occurrence from unlocked room not belonging to accused--No evidence of room being in possession of accused--Owner of room not produced to prove renting of room to accused--Crime empty not recovered from spot but from chamber of pistol recovered from accused--Mechanism of pistol showing automatic ejection of empty after firing--Possibility of preparing crime empty from recovered pistol before sending to expert could not be ruled out--Recovery of pistol and positive report of Fire-arms Expert would be of no consequence in circumstances.

---S.302--Delayed F.I.R.--Effect of--Deceased taken to hospital With in few minutes of occurrence where he was declared dead--Deceased allegedly brought back to village--Complainant owning taxi car--Police post only at distance of 3 furlongs--Investigating Officer reaching spot within 30 minutes after recording F. I. R.--Medical evidence showing instantaneous death--Important details of occurrence implicating accused, mentioned in F.I.R., found missing from inquest report prepared on next day--Story of taking deceased to hospital and then bringing back was introduced to cover up delay of four hours in lodging F.I.R., which was recorded next morning after preparing inquest report and accused was not named till that time as suspect murderer of deceased--No body was around the place of occurrence at time of occurrence and witnesses came to know about his death late in night and deliberated till preparation of inquest report.

---S.302--Wajtakar evidence, appreciation of--Witnesses immediately informing complainant about seeing accused and deceased together and also of accused running away from spot with pistol in his hand soon after occurrence--Such fact not finding mention in F.I.R. --One of witnesses resident of different and distant place from spot--Assertion of living in village of occurrence by such witness not free from doubt--Statements recorded on next day--Witnesses found not available in village till next morning--Prosecution, held, had miserably failed to establish that accused murdered the deceased--Conviction and sentence set aside in circumstances.

Mian Aftab Furrukh for Appellant.

Muhammad Aslam Malik for A.A.-G. for the State.

Sardar Muhammad Ishaq Khan for the Complainant.

Date of hearing: 24th March, 1987.

Abid Rahi son of Abdul Ghani caste Awan, aged 22 years, resident of Dhalla, police station Bairuni, district Rawalpindi, has been convicted by Additional Sessions Judge, Rawalpindi, for the murder of Abdul Ghafoor son of Ghulam Qadir aged 34 years, resident of Dhoke Wars. Dakhli Seham, district Rawalpindi, and sentenced to imprisonment for life and a fine of Rs.10,000/- and in default of payment of fine to further undergo 6 months' R.I., vide judgment dated 27-9-1984. The fine, if recovered, was directed to be paid as compensation to the legal heirs of the deceased. Feeling aggrieved thereby the convict has filed appeal (Cr.A. No.85/1984) challenging his conviction and Ghulam Qadir, complainant, father of deceased, has filed a revision (Cr.R.No.112/1984) for enhancing the sentence of the appellant. This judgment shall dispose of both the appeal and the revision arising, from the same judgment.

2. Prosecution case, as disclosed at the trial, was that Abdul Ghafoor (deceased) was a taxi driver by profession. He had some money dispute with the appellant. On 27-12-1981 at about 7 p.m., Ghulam Qadir, complainant, his sons Abdul Ghafoor (deceased) and Mahboob, Mst. Zaibun Nisa wife of the deceased and her brother Chaudhary Nawaz were present in their house in village Dhoke Wara Dakhli Seham when Abid Rahi (appeilant) cane there, celled out Abdul, Ghafoor (deceased) and took him to fields outside the village. After about 15 minutes the appellant returned and informed them that Abdul Ghafoor had been hit with a bullet. At this, the complaint alongwith Mahboob, Mst. Zaibun Nisa and Chaudhary Nawaz rushed to the spot and found Abdul Ghafoor (deceased) lying unconscious with a bullet injury in his right flank in a field (about 200/250 feet away from his house). Malikdad (PW.3) son-in-law of the complainant and Muhammad Bashir (P.W.4) maternal-cousin of the complainant who were present there had informed the complainant that they had seen the appellant and the deceased going together towards the place of occurrence and that they were about 30/40 yards away when they heard report of a gunfire and also saw the appellant running from there towards the village Abadi with a pistol in his hand. The deceased was then removed in injured state to the hospital by the complainant and Muhammad Bashir PW in taxi car of the deceased but before he could be given medical aid he expired. The dead body was brought back and leaving it in the care of Chaudhary Nawaz the complainant went to police post Nasirabad at a distance of 3 furlongs from there and lodged report Ex.PA at 11 p.m., recorded by A.S.I. Muhammad Khan (PW.9) who sent it for registration of formal F.I.R. to Police Station Cantonment, Rawalpindi, where S.I. Mumtaz Khan (PW.6) on its basis drew up formal F.I.R. Ex.PA/1 at 11.15 p.m.

3. A.S.I. Muhammad Khan (PW.9), after sending the report Ex.PA to the police station for registration of case, went to the house of complainant where the dead body of the deceased was said to be lying and reaching there at 11.30 p.m., he prepared inquest report Ex.PE and sent the dead body for post-mortem examination under, police escort. It was a dark night, therefore, he inspected the scene of offence next day (28-12-1981). No blood or empty cartridge was found lying there. He arrested the appellant on 30-121981 who got recovered pistol P.4, 24 cartridges P.6/1-24 contained in bandolier P.7 and two magazines P.5/1-2 at his pointation from an unlocked room allegedly occupied by him (situated near deceased's residence) belonging to one Nazir, a relative of the complainant. An empty P.8 was recovered from the pistol and all these articles were seized under memo Ex.PC attested by Abdul Khaliq (PW.7). Thp appellant held no licence for possessing the pistol and the ammunition recovered from him, therefore, a case under the Arms Ordinance, 1965, was got separately registered against him. Empty P.8 as well as pistol P.4 were sent to the Forensic Science Laboratory for comparison and report, if the empty had been fired through this pistol. Report Ex.PJ from Fire-arms Expert had been received in positive. After completing the investigation the appellant was challaned to Court.

4. Dr. Muhammad Akhtar Khan (PW.5), Medical Officer, D..H.Q. Hospital, Attock, on 28-12-1981 at 1 p.m. , conducted autopsy on the dead body of deceased and noted a wound of entry 0.75 cm x 0.75 cm caused with a bullet at the right lumber region 1" posterior-inferior to the anterior superior iliac spine. The bullet travelled through right iliac, right pelvic region and right iliac vessels and abdominal aorta fracturing and rupturing intervening bones and organs hit the third lumber vertebra causing its fracture. The bullet was extracted from lumber region and sent to police in a sealed phiel. The doctor opined that the deceased died of shock and haemorrhage due to the gunshot injury which was sufficient to cause death in the ordinary course of nature. The deceased according to the doctor had died immediately on receipt 'of injury and post-mortem was conducted after about 17 to 20 hours of his death.

5. At the trial prosecution in support of its case examined 12 witnesses. The important among them are Ghulam Qadir (PW'A) father of the deceased who stated that in his presence the appellant called and took away the deceased with him a few minutes before the occurrence; Malikdad (PW.3) and Muhammad Bashir (PW.4) claimed to have seen both Abdul Ghafoor (deceased) and Abid Rahi (appellant) going together towards the place of occurrenbe and that they had gone 30/40 yards from each other when they heard a report of gunfire and saw the appellant going from there towards Abadi with pistol in his hand; and Abdul Khaliq (PW.7) deposed about the recovery of pistol P.4 containing an empty P.8 in its chamber, effected from the appellant while Dr. Muhammad Akhtar KhAn (PW.5) opined that the deceased had. died of gunshot wound.

6. In his statement recorded under section. 342, Cr.P.C., the appellant denied the allegation and explained that he had been implicated out of suspicion and that recovery of pistol and ammunition had been planted on him for strengthening the prosecution case. He examined Dr. Mahmood Khan (D.W.1) in his defence to show that Abdul Ghafoor (deceased) was taken to D.H.Q. Hospital, Rawalpindi, at 8 p.m., in an injured condition where he was treated vide entry No.10466 dated 27-12-1981 in the casualty outdoor register and died at 11 p.m. The DW proved certificate Ex.DA to have been issued by him in this regard.

7. Learned trial Court on consideration of material on record rejected the evidence of Dr. Mahmood Khan (DW.1) because he failed to produce the original outdoor register showing admission of the deceased for treatment at 8 p.m., on the day of occurrence. Learned Court also disbelieved the motive part of the prosecution-story saying that Ghulam Qadir Complainant did not give details of the dispute existing between deceased and the appellant yet he remarked that it did not affect the prosecution case adversely. Recovery of pistol P.4 doupled with Forensic Science Laboratory's Report Ex.PJ showing that empty P.8 was fired through it, was treated as incriminating confirmatory circumstance of the testimony of Ghulam Qadir complainant (PW.2), Malikdad (PW.3) and Muhammad Bashir (PW.4) and held the appellant guilty of murdering the deceased by firing, and convicted and sentenced him as indicated above, hence this appeal.

8. It is contended that there is delay of four hours in lodging "the F.I.R.; that there is no eye-witness of the occurrence; and that the circumstantial evidence relied upon comes from close relations of the deceased which does not inspire confidence, hence conviction and sentence of the appellant is not sustainable. Learned State counsel assisted by the complainants learned counsel stated that evidence of Malikdad (PW.3) and Muhammad Bashir (PW.4) is almost in the nature of ocular account which successfully connected the appellant with the crime, therefore, the conviction and sentence recorded by the trial Court being well founded do not call for interference.

9. Death of the deceased by firing as well as the time and place of occurrence has not been denied by the defence, therefore, what remains to be determined is, whether it is established beyond all reasonable doubts through evidence on record that the deceased was murdered by the appellant and nobody else.

10. Report of Fire-arms Expert Ex.PJ says that empty P.8 has been fired through pistol P.4, allegedly recovered from the appellant

This pistol (P.4) was recovered three days after the occurrence from an unlocked room (belonging to one Nazir) but there is not an iota of evidence to show that the room of recovery ever examined in possession of the appellant. Nazir, owner of that room, has not; appeared to say that he had rented it out to the appellant during the days of occurrence. It may be mentioned that empty P-3 which matched with pistol P.4 was not found lying at the scene of offence. It was rather found in the chamber of pistol at the time of its recovery, therefore, the possibility of preparing empty P.S from pistol P.4 by the police before sending it to Fire-arms Expert cannot be excluded. I have seen the pistol P.4 in Court. Its mechanism shows that it ejects the empty automatically when a cartridge is fired from it. The empty cannot remain in the chamber or its magazine after firing of the cartridge through it. So the presence of empty in the chamber suggests that it was placed in it subsequently. In the circumstances, recovery of pistol P.4 as well as Fire-arms Expert's) report Ex.PJ are inconsequential.

11. The occurrence took place at 7 p.m., and within a few minutes the deceased was allegedly removed to the hospital in a taxi car where he was declared dead. Police post Nasirabad is only three furlongs away from the spot. The complainant owned a taxi car so it would not have taken more then half an hour after the occurrence to lodge F.I.R. with police if they really had come to know of the incident, immediately after the occurrence, as claimed by them -because it took only 30 minutes for the A.S.I. to reach the 'spot after recording the F. I. R., therefore, delay of four hours in lodging the F.I.R. means that nobody was present at or around the spot at the time of occurrence. According to medical evidence the deceased died instantaneously so there was no need to take him to hospital either. It, therefore, appears that story, of taking the deceased to hospital and then bringing his dead body back has been introduced to cover, up the delay of four hours caused in lodging the F. I. R. If one and half hours' time said to have been consumed in taking the deceased to hospital and bringing his dead body back is allowed even then the F.I.R. must have been recorded by 9 p.m. The matter does not end here as I am of the view that the F.I.R. had not been recorded till next morning (28-12-1981) because most important details mentioned in the F.I.R. (allegedly recorded at 11 p.m.) implicating the appellant are missing from the inquest report Ex.PE (prepared after 11.30 p.m.) e.g.--

(i) Column No.3 of inquest-report which is meant for noting the time when the police learnt about the commission of murder, is left blank.

(ii) In "brief facts" narrated therein, there is no mention that on account of money dispute the appellant had shot at and killed., the deceased.

(iii) It is not mentioned in it that Malikdad and Muhammad Bashir PWs had seen the appellant and the deceased together at or near the spot immediately before the occurrence.

(iv) There is no mention either that Malikdad and Muhammad Bashir PWs heard a report of gunfire and saw the appellant gunning (with pistol in his hand) towards village Abadi from the spot.

These omissions in the inquest report show that the F.I.R. had not been registered by the time the inquest report was prepared. In other words, the appellant by that time had not been named even .as a suspect-murderer of Abdul- Ghafoor (deceased). Learned Stag counsel submitted that it is not a requirement of law that all the details mentioned in F.I.R. must be given in the inquest report, therefore, these omissions would not necessarily mean that the F.I.R. had been recorded after the preparation of inquest report. It may not be a requirement of law but we know it from experience that the Investigating Officers generally incorporate the F.I.R. verbatim in the inquest report while giving "brief facts" of the case. In this case the A.S.I. (PW.9) author of inquest report Ex.PE has clearly stated that he had copied out the F.I.R. in the inquest report. He did not say that he omitted to mention certain details in it deliberately. Therefore, the above noted omissions in the inquest report lead to no other conclusion except that F. I. R. had been recorded after preparation of the inquest report. This further fortifies my view that nobody was around the place of occurrence when the deceased was shot dead and that his relatives came to know about death of the deceased late in the night and continued deliberating till after the preparation o. inquest report and then lodged the F.I.R. next morning.

12.' It is noteworthy that Malikdad P.W. admitted that village "Khanna Kak" is recorded as his permanent residence in -his driving licence as well as in his national identity card which is of course a different and distant place from the village of occurrence, therefore, his claim that in the days of occurrence he was residing with the complainant in Dhoke Wara Dakhli Seham is not free from doubt.. Had he been present in the village on the day of occurrence then in all probability he would have taken the deceased (his brother-in-law) to the hospital (if he was ever taken there) rather than his 65 years old and fragile father-in-law, Ghulam Qadir complainant, in wintry night. The fact that statements of Malikdad and Muhammad Bashirl PWs were recorded next day also goes to show that they were not available in the village till next morning. The Investigating Office has tried to neutralise the effect of non-examination of the witnesses same night by saying that it was he who examined them late. If he could prepare inquest report the same night then why their statements were not recorded at that time It is quite meaningful. There is yet another circumstance which belies their claim that they were present at the time of occurrence. According to them, they saw the deceased and the appellant going together towards the place of occurrence and had gone 30/40 yards away from each other when they heard report of gunfire and then aw the appellant running towards Abadi with a pistol in hand. They further stated that they immediately told ally about this to Ghulam Qadir complainant. But strangely enough this story does not find mention in the F.I.R. lodged by Ghulam Qadir, only four hours later. This is in evidence that Ghulam Qadirl complainant was challaned for murder of one Anwar, therefore, it is just' possible that his son (deceased) was fired at from behind in darkness by any of the relations of said Anwar to avenge his murder.

13. For what has gone above, I find that the prosecution has miserably failed to establish that appellant committed murder of the deceased, Abdul Ghafoor. Consequently, I allow this appeal, set aside conviction and sentence of the appellant and acquit him. He shall be released forthwith if not wanted in any other case. Revision for enhancement of sentence of the appellant for the same reasons stands automatically dismissed.

S. A. /A-116/L Acquitted.

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