1987 PLP 1799 (MLD)

5. The Investigating Officer during inspection of the spot collected blood: stained earth from the place of occurrence vide memo Exh.P.D. The, appellants were arrested on 22-4-1983. On 1-5-1983 Ali accused while in Police, custody led to the recovery of blood-stained Barchah P.4 which was taken in possessor by, A.S.I. Amir Akbar P.W. 10 vide, memo. Exh.P E. in presence of Allah Yar P.W.6 and Bati P.W.9. On the same day in presence of .the same witnesses Ahmad Yar accused led .to the recovery of blood-stained Sota P.5 vide memo. Exh. P.F. On the same day in presence of the same witnesses Riaz accused led to the recovery of blood-stained Sota P.6 vide memo. Exh. P.G. 'these crime weapons were found stained with human blood vide report of the Chemical Examiner Exh.P.M. and that of Serologist Exh.P.N. No incriminating article was recovered from the remaining three accused. The accused were challaned after completion of investigation.

6. The prosecution during the trial examined ten witnesses in support of its case. P. W.5 Wali Muhammad and P. W.6 Allah Yar Baloch were examined as eye-witnesses. Ghulam another eye-witness named in F.I.R. was given up as having been won over by the accused. The recoveries of crime weapons P.4 to P.6 were witnessed by Allah Yar P.W.6 and Bati P.W.9. The medical evidence was furnished by P.W.9 Dr. Muhammad Saeed as given in detail above. The case was investigated by A.S.I. Amir Akbar P.W.10. The evidence of the rest of the witnesses was of formal nature. The accused when examined under section 342, Cr.P.C. denied the charge and pleaded innocence. They denied their presence at the spot at the time of occurrence and attributed this case against them at the instance of Mehr Khudadad son of Mutalam. They did not produce any evidence in defence. The learned trial Judge placed reliance on the eye-witnesses, recoveries of crime weapons and evidence on motive and convicted the appellants as stated above.

7. I have heard the learned counsel appearing for the parties and have carefully gone through the record of this case. It was contended on behalf of the appellants that the F.I.R. in this case was recorded after preliminary investigation and thereafter the case against the appellants was fabricated. Secondly, that the recoveries of crime weapons could not furnish a corroborating evidence against the accused because these were sent for Chemical gnalysis after 30 days of recoveries. Thirdly, that three accused namely Abbas, Mirja and Natu were found innocent by the Police and not challaned and fourthly, that the eye-witnesses being interested were not reliable specially because of their conduct that they did not accompany the dead body to the mortuary for identification. The learned counsel for the State and complainant have controverted these contentions.

8. The occurrence in this case took place at about Peshiwela and the statement Exh. P. C. was recorded at Lakmorr at about 5-1 P.M. on the same day. The police station was about 18 K.M. from the place of occurrence. There does not appear any delay in lodging of the F.I.R. The argument of learned counsel was that the simple fact that the F. I. R. was not recorded at the police station but at place near the place of occurrence indicates that it was recorded after some preliminary enquiries at the place of occurrence. I am not prepared to agree with the learned counsel to conclude that any preliminary enquiry was held by the investigating officer before recording the statement Exh. P.C. Secondly, if some enquiry had been held the three alleged innocent accused would not have been named in the F.I.R. The inclusion of the names of Abbas, Mirja and Natu accused clearly shows that the statement Exh. P.C. was recorded at the instance of Wali Muhammad P.W.5 without any preliminary enquiries. The recoveries of the three crime weapons were witnessed by P.W. 6 Allah Yar Baloch and P.W.9 Bati. These two recovery witnesses are not related to the deceased. They have no enmity with the accused to falsely implicate them in this case. On perusal of their statements I find that they had made consistent statement during the trial to support the prosecution case. I find no reason to disbelieve them. It is correct that the three crime weapons which were recovered on 1-5-1983 were received by the Chemical Examiner on 30-5-1983 but this fact does not mean that the recoveries cannot furnish a corroborating evidence in this case, It was argued by the learned counsel that the blood must have disintegrated during these 30 days and .as such no reliance can be placed on the report of Serologist Exh. P. N. This argument has no force because these crime weapons did not remain lying buried in earth on account of which the blood could disintegrate. After recoveries, these weapons were sealed in parcels, which were found intact by the Chemical Examiner. In m view the blood could not have disintegrated after the weapons were sealed in parcel. Secondly, the Chemical Examiner or the Serologist did not state in their reports that the blood had disintegrated or that for that reason no opinion could be given. The blood was not found disintegrated by them. In view of this I do not find any force in the contention of learned counsel for the appellants. The prosecution case is supported by P.W.5 Wali Muhammad and P.W.6 Allah Yar. These two eye-witnesses had no direct enmity with the accused to falsely implicate them in this case. Wali Muhammad P.W. is resident of Chak No.53 S.B. about 50 miles from the place of occurrence but he has given a reasonable explanation of his presence at the time of occurrence. The F.I.R. was recorded on his statement Exh. P.C.which was recorded after a short while of the occurrence. If Wali Muhammad P.W. had hot witnessed the occurrence it would not have been possible for Police to summon him from his house in such a short period and then record his statement at 5-15 P. M. on the day of occurrence. Allah Yar Baloch P.W. is resident of village Sakesar which was only- one mile away from the place of occurrence. He was going to bring milk from the dera in Chak No.61 N.B. At that time Ghulam and Wali Muhammad P.Ws were going ahead of him when he reached near the dera of Allah Yar deceased, he saw the occurrence. Allah Yar P.W.6 is not related to the deceased. He has no enmity with the accused. Both these eye-witnesses were not effectively cross-examined during the trial. I do not find any thing in their statements to disbelieve them; Both of them were independent witnesses. It was argued that the two eye-witnesses-were not present when the inquest report was recorded nor did they accompany the dead body for post-mortem examination and as such it can be reasonably inferred that they were not present before the occurrence or at the time of occurrence or at the time when the Police arrived at the spot. This argument is without any basis. As held above, the F.I.R. was recorded without any delay. Mere fact that these witnesses were not mentioned in the inquest report or that they did not accompany the dead body, to the mortuary would not mean that they were not present at the spot at the time of occurrence or that they were false witnesses. One can imagine many reasons for omission of the Investigating Officer to mention their names in the inquest report. I am clear in my mind that these two witnesses were present at the spot and that they witnessed the occurrence. It was vehemently argued by the learned counsel for the appellants that Abbas, Mirja and Natu accused were found innocent by the Police and as such they deserve acquittal. I have considered this argument. These three accused were distantly connected with Ali accused. They did not have direct motive to join their co-accused in the commission of this offence. No crime weapons or other incriminating articles were recovered at their instance. They pleaded innocence at the very first opportunity before the police. They examined many witnesses in their defence during investigation. The case was investigated by more than one Police officer. They all consistently found them innocent.

9. In view of above discussion I find no merit in this appeal on behalf of Ali, Ahmed Yar and Riaz accused which is accordingly dismissed. This appeal on behalf of Abbas, Mirja and Natu accused is accepted. Their conviction and sentences are set aside. They are acquitted of all the charges in this case. They shall be set at liberty forthwith if pot required in any other case.

10. In view of the above decision the conviction of Ali, Ahmad Yar and Riaz accused-appellants under section 148, P.P.C. ip set aside. These three appellants are sentenced to 10 years' R.I. udder section 304/34, P.P.C. They will be allowed benefit of section 382-B, Cr.P.C.

11. In view ok the above decision in appeal Criminal Revision No. 522 of 1984 is dismissed in limine. S.A./A-84/L Order accordingly.