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Criminal Appeal No.57 of 1974/BWP and Murder Reference No.6 of 1974/BWP, decided on 25th February, 1975.

---S.302/34--Eye-witnesses not appearing to have seen occurrence and implicating accused on suspicion--First information report lodged with inordinate delay of sixteen. hours apparently, after making preliminary investigation although distance between place of occurrence and police station was only ten miles and no reason was given therein for delay--Material contradictions existing in first information report and statements of witnesses--Ocular evidence standing materially contradicted with medical evidence and belied by circumstantial evidence--Evidence of recovery of pistol and empty cartridges also appearing to be tainted--Crime empties and pistol were not sent to forensic science laboratory together and no reason was given for such omission--Mode of comparing' crime empties with test' empties adopted by. Expert not satisfactory--Accused given benefit of doubt and acquitted in circumstances:

Muhammad Aslam v.. The Crown 1969 S C M R 426 and Badi Gul v. Mian Gul and others 1972 S C M R 572 rel.

Muhammad Munir for Appellants.

Ch. Muhammad Aslam for the State.

Khan Riazud Din for the Complainant.

--This criminal appeal arises from the judgment dated 17-4-1974 whereby the learned Sessions Judge, Bahawalnagar, convicted Shah Sawar son of Muhammad Ali aged 28 years and Shah Nawaz son of Muhammad Ali aged 25 years, under section 302/34 PPC for murdering Shah Muhammad son of Muhammad aged 40 years in furtherance of the common intention, Shah Sawar was sentenced to death and Shah Nawaz to life imprisonment. We have murder reference also before us for the confirmation of death sentence awarded to Shah Sawar and this judgment will dispose of the criminal appeal and the murder reference together.

2. The facts of the case, according to the F.I.R. are that after having purchased goods the deceased unloaded the goods on the camel at the residence of Said Muhammad. When from the house of Said Muhammad the deceased was proceeding towards his house carrying a bundle of oil cakes on his head and a piece of salt stone in his hand he was followed by his brother Nazar Muhammad complainant and wife Mst. Siddiqan. Shah Sawar appellant on being exhorted by his brother Shah Nawaz fired his pistol twice at the deceased after coming out from, behind a tree. The deceased receiving the injuries started running and when he travelled upto about 30 feet Shah Sawar appellant made a third fire at him which hit him on the back and he fell down anal died. After that Shah Sawar appellant came to the spot armed with a stick but as by the time Said Muhammad and Y-aseen PWs, who were unloading the purchased goods from she-camel were attracted to the place of occurrence by the fires, they ran away. The story of the motive is that the appellants had suspicion that Shah Muhammad (deceased) had illicit connections with their step7sister Mst. Bhagan, on account of which they had abused the deceased in the presence of Said Muhammad and Yaseen and had threatened to see him.

3. Ocular account of the occurrence at the trial was given by Nazar Muhammad (PW-8), Mst. Siddiqan (PW-9) and Yaseen (PW-10). Their evidence is also the same as narrated in the facts of the case except that they in contradiction of the FIR stated that the third fire was made by Shah Sawar at the deceased when the latter had turned his face and that the said fire hit the deceased on the front side.

4. The case was investigated by SI Muhammad Abdul Rashid PW-12. Two empties were seized by Muhammad Abdul Rashid PW from the place of occurrence and Yaseen PW-10 testified the, said recovery. Pistol P 3 is alleged to have been produced by Shah Sawar appellant to Muhammad Abdul Rashid PW on 29-4-1973 and the same witness i.e. Yaseen testified it. The same Sub-Inspector seized a bundle P-5 containing eight seers of oil cakes and a piece of salt stone P-4 from the place of occurrence.

5. Post-mortem examination upon the dead body was performed by Dr. M. Arif Saeed, who was examined by the committing Magistrate as PW-8. He found two injuries of entrance which consisted of six wounds each one on the anterior side of right chest, 1 " below the right nipple and the other 1 " above the amblicus more on the right side. He found one exit injury consisting of four lacerated wounds on the back of left chest just near the vertebral column 1 " below the left shoulder bone. A piece of pellet was also found lying in the chest. On internal examination, 5th rib on the right Side was found fractured and right pleura and right lung were ruptued. In the abdomen petinium and small intestines were ruptured ascending color and descending colon, liver and kidneys were also found ruptured. Four pellets more were removed from the dead body. In the opinion of the doctor the death was instantaneous.

6. In cross-examination he stated that it was impossible for the deceased to walk after receiving injury No.1.

Mr. Muhammad Hanif Nasim, Fire Arms Expert, who compared the crime empties after preparing the test empty from pistol P.3 found that the crime empties had been fired from the same Pistol.

7. Both the appellants denied the charges. They denied that Mst. Bhagan was their step-sister. They contended that the complainant party was inimical towards them, that they got registered several cases against them including the proceedings under section 107/151 Cr.P.C. and a case under section 436/307 PPC. They also contended that Shah Muhammad (deceased) alongwith the together of Des Dawan and Ghani Phularwan used to smuggle goods in India, therefore, some unknown persons might have killed the deceased during his smuggling activities. Shah Sawar appellant produced in evidence copy of the statement of Abdul Rashid Ex. D. C. recorded in the case titled as State Vs. Shah Sawar under section 307/436 PPC, copy of FIR (Ex. DD) made by Des Dewan against the appellants on 25-4-73 and a copy of judgment dated 31-12-1973 delivered in the above mentioned case under section 307/436 PPC.

8. It appears that the eye-witnesses did not see the occurrence and only on suspicion the appellants were implicated. There was an inordinate delay of sixteen hours in reporting the matter to the police, although the distance between the place of occurrence and the police station was only 10 miles. The occurrence took place at evening time on 25-4-73 but the report was made at 9 p. m. on the following day. In the F.I.R. no reason has been given for reporting the matter after so much delay. However, Nazar Muhammad at the trial stated that all the bridges were guarded by the Army and nobody was allowed to cross the same. This reason given by the complainant is not convincing. The Army personnel would riot have disallowed the complainant to cross the bridge in order to go to the police station for getting the case registered. If any person crosses A the bridge situated near the Border without any permission lie could be checked but this is not believable that when a person has to go to a police station urgently he is not allowed to cross the bridge. Even if it was so, he complainant could cross the stream not through the bridge but at any other point passing through the stream or by swimming. It has not been stated that the Army guarded the whole stream along its banks. Time was required to make consultation and consideration as to who could be the assailants and this appears to be the reason for lodging the report, after a considerable delay. There are some other factors also which show that the eye-witnesses actually did not see the occurrence and that as consultation was to be made the report was made later.

9. There is very material contradiction in the FIR find the statement of Nazar Muhammad PW-8 and the other eye-witnesses. In the FIR Nazar Muhammad PW-8 stated that the third fire made by Shah Sawar hit the deceased on his back but at the trial he and the other eye-witnesses on the contrary stated that the third fire injury was received by the deceased on the front part. Since there was an exit injury on the back and the witnesses were not present at the time of the occurrence, therefore, in the FIR it was stated that one fire hit the deceased on the back. The complainant and other witnesses not being experts could not realise whether injury on the back was exit injury or of entrance but when afterwards the doctor gave his opinion, they deliberately made improvements and came forward with the story that the third pistol shot was received by the deceased on the front part of his body.

10. This is not believable that after receiving two pistol shot injuries one in the chest and the other in the abdomen the deceased was in a position to run. In the opinion of the doctor the death was instantaneous, therefore, the possibility that the deceased would run after receiving the injuries stands completely excluded. As no third injury was received by the deceased, the two injuries received by him on the front part of his body were fatal and the deceased must have fallen on the spot after receiving the said injuries. Even if it be said that the deceased started running after receiving two injuries, this is not believable that he after reaching at a distance of 30 feet stopped, turned round to face his assailants and thus received the third injury on the front part of the body. If it be said that the deceased had started running naturally he ran to save his life and thus would not have stopped and faced towards the assailants afterwards. If he had received third injury on the back it could be believed that he did not fall down after receiving the first two injuries and had started running and that after receiving the third injury on the back he had fallen down. Since the ocular evidence, stands materially contradicted with the medical evidence, it is apparent that the eye-witnesses were not present at the time of occurrence. This is also strange that the heavy articles which the deceased was carrying were found just near the dead body. This factor further falsifies this part of the statements of the eye-witnesses that after receiving two pistol shot injuries the deceased had started running. The deceased, even if it be believed that he had started running after receiving the two injuries, could not have carried his load with him. So if the story that he had started running after receiving two injuries had been correct then the bundle of oil cakes and the salt stone would have been found at the place where he had received the first two pistol shot injuries 'and not at the place where, according to the ocular evidence he fell down after receiving the third injury. It has been stated that Shah Sawar accused had come out from behind a Sheesham tree meaning that there were trees near the place of occurrence. If the deceased had been in a position to run after receiving the first two pistol shot injuries instead of running in the opens pace he would have run towards the trees to take shelter and to be saved from further firing. There were situated houses near the of occurrence so if the deceased did not find it convenient to take shelter behind some tree instead of running in the open space would have taken shelter in some house. If the eye-witnesses had stated that the deceased ran upto a distance of about 30 feet there could be some scope to say that they being under the wrong impression that third fire was made stated that it hit the deceased on the front part. Since they are definite that the deceased started running after receiving the two injuries no question of misapprehension on their part arises and the only inference is that they did not see the occurrence.

11. In the inquest report there is no mention of the weapon of offence i.e. whether it was a gun, rifle or a pistol. In the column of offence ".12 bore pellets" are mentioned .12 bore pellets cannot be a weapon of offence. It shows that the FIR was recorded after the preparation of the inquest report. If before its preparation the FIR had been recorded then the weapon of offence would have been) mentioned as a pistol. It is thus apparent that even the FIR was r recorded after making some kind of preliminary investigations to find out who could be the culprits.

12. As the medical evidence belies the statements of the eye witnesses it is apparent that the eye-witnesses did not see the occurrences. In Muhammad Aslam v. The Crown 1969 S C M R 426 the evidence of the sole eye-witnesses who had shouted out the names of her assailants, was not believed because according to the doctor the death was instantaneous. In the present case the opinion of the doctor is that the deceased after receiving the injuries ran upto a distance of 30 feet and was then shot dead by a third shot. Same kind of observation was made in Badi Gul v. Mian Gul and others 1972 S C M R 572. The opinion of the doctor was that as the heart alongwith its blood vessels had been completely destroyed the death was instantaneous. It was observed that in view of the opinion of the doctor the evidence that the deceased after receiving such an injury walked upto 42 feet was not believable.

13. There is one another circumstance which belies the testimony of the eye-witnesses. They have stated that after the deceased was shot dead Shah Nawaz appellant -who previously had been exorting his companion from the other end of the pond came near the dead body armed with a hatchet. If the eye-witnesses had been present on the spot, Shah Nawaz would not have dared to go to the place of occurrence in their presence and normally would have made good his escape right from the place where he is alleged to be present and exorting Shah Sawar appellant. As there was water in the pond Shah Nawaz could reach the place of occurrence after crossing the path where the eye-witnesses were standing, therefore, he would have been easily overpowered and captured by them. If he had been armed with a gun or a pistol it would be said that he was not afraid of the witnesses and by threatening them with his fire-arm he reached the place of occurrence. If Shah Nawaz appellant had common intention with Shah Sawar appellant he would have remained near him but according to the evidence he was at a considerable distance on the other side of the pond. It has not been explained why he took his stand at point No.7 which is situated at a considerable distance from the place where Shah Sawar appellant was and from where he is alleged to have fired at the deceased. There was no cause for him to exhort Shah Sawar appellant from such a distance. As there was no sharp edged injury on the person of the deceased, therefore, the witnesses did not come forward with a story that Shah Nawaz appellant had also done any overt act and they contended themselves with gating that he had only exhorted his companion.

14. The evidence of the recovery of pistol and the empty cartridges also appears to be tainted. Although many other persons were present as admitted by the Sub-Inspector still he selected relatives of the deceased to be cited as recovery witnesses. No reason has been given for that. When the Investigating Officer had the opportunity tc; select respectable witnesses who were not partisans there appears to be no reason why he did not include respectable independent witnesses at the time of making recoveries. The crime empties had been recovered much earlier and were in the possession of the ' Investigating Officer on 21-4-1973 when pistol P-3 is alleged to' have been produced by Shah Sawar appellant but still the crime empties and the pistol were not sent to the Forensic Science Laboratory, together and they were sent on 7-5-1973 whereas the pistol was sent on 20-5-1973. No, reason has been given for doing so. The very production of pistol P-3 by Shah Sawar appellant is doubtful. According to the memo it was produced by Shah Sawar appellant on the spot but Yaseen PW stated that it was produced by the said appellant at H the residence of the Sub-inspector. As the crime empties and the pistol were retained unnecessarily for a long period the possibility, cannot be excluded that they had been tampered with.

15. The mode of comparing the crime empties with the test empties, adopted by the Expert, is not satisfactory. They do not take the photograph of the whole face of the percussion caps of the crime and the test empties with the result that the whole picture of the dents, scratches, etc. appearing on both the empties is not before the I Court. If the photographs of the whole face of the percussion caps of the test and crime empties are taken the length, breadth, angles and other particulars of the dents and scratches can be visualised by the Court to find out if in reality there are similarities.

16. As a result of the observations made above, we give benefit of doubt to the appellants and accepting the appeal acquit them. The death sentence awarded to Shah Sawar is not confirmed. The appellants shall be released forthwith if not required in any other case.

M.Y.H./S-114/L Appeal allowed.

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