P L D 1988 Karachi 521 (PLP)

Sajjad Ali SHAH , J Appellant yousuif and co accused Jumo were put on trial for offence under sections 302, 307 read with section 34, P.P.C. for murder of Tooh and causing injuries to P W Ghulam Monammad vide impugned judgment dated 27‑10‑1987 of learned list Additional Sessions Judge, Dadu. Yousiff has been convicted and sentenced to R I for 7 years and fined of Rs Rs.5,000 or in default R.I. for 6 months for causing injuries to P W, Ghulam Mohammad, Trial Court vide' the Same judgment has acquitted co‑accused Jumo of 'he charges on, the ground that prosecution has failed to Prove ease against him. Appellant Yousif being aggrieved against the judgment of the trial Court has filed this appeal and is also reference against us for confirmation of death sentence and we purpose to dispose of both by one common judgment .It would be worthwhile to mention here that the state has not filed appeal against acquittal of co accused Jumo. Briefly stated the relevant facts are that two F I Rs . have been filed in this case . First F. I . R is in crime No.148/81 filed on 23‑12‑1981 at Police Station Mehar in District Dadu by complainant Haji Jumo slo Haji Teveno. Offences iii this F.I.R. are 342, 347, 397, 394, P.P.C. and 1?(3) Hudood Ordinance'. According to.this F.I.R. on the top of Saleh Shakh near villages A1lahando and Allahdinc Teveno complainant Haji Jumo and his friend Bashir s/o Haji Mitho on 23‑12‑1981 at 10‑00 p.m. met four persons who were sitting in hiding On the southern side of the top and were armed. They came out and surrounded complainant and his companion, who in the light of torch identified from them Shafoo s/o Arab Khoso armed with gun and Tooh s/o Arab Khoso armed with. hatchet. They did nut identify the remaining two who were also armed with gun and hatchet separately Tooh and one other person aseced complainant and his companion to hand over cash and watches otherwise they would rye murdered. Toot robbed complainant of Rs.150 and has Citizen watch tend his friend of Rs.70 and his Camy watch. Tooh handed over those articles to his brother Shafoo. Accused persons ordered complainant acid his friend to remove their clothes upon which they raised cries which attracted to the spot the persons from nearby villages. On seeing witnesses coming near Shafoo and one other person who was armed with gun fired, which accidentally hit Tooh and one other unidentified accused who was armed with hatchet and both of them fell down injured on the top. After that Shafoo and an, unidentified accused ran away. Witnesses who reached the spot, included Bachal s/o Abdul Rehman, Allahdino s/o Ismail, Haji Qassim s/o Ramzan, Muhammad Yousif and Mazar, who were apprised of the facts of the incident. All went and saw Tooh having sustained gunshot injury on the shoulder and was unconscious. The other injured was unidentified accused with hatchet, who had sustained gunshot injury but was able to speak and gave his name as Ghulam Muhammad s/o Muhammad by caste Gachal. Yousif and Haji Qassim went to village Khondi and brought a jeep in which both injured were taken to the police station but on the way Tooh expired. Report of complainant Haji Jumo as stated above was registered by S.H.O. Abdul Razzak at Police Station Mehar. Robbed property in the shape of two wrist watches one of Western Company and the other Camy watch valued at Rs.300 and Rs.200 respectively and cash of Rs.150 and Rs.70 were recovered. Total value of the robbed property came to Rs.720. Such F.I.R. Exh.P.15 is on the record. S.H.O. Abdul Razzak after registering the F.I.R. Exh.P.15 examined dead body of loon vide mashirnama Exh.P.ll and prepared inquest report Exh.P.12. He sent the dead body to the hospital for post‑mortem examination and then examined injuries of Ghulam Muhammad vide memo Exh.P.lf and took him under arrest. S.H.O. then visited vardat on 24‑12‑1981 which was pointed out by complainant Jumo. He secured blood‑stained earth and one empty cartridge which were put into sealed parcels and such mashirnama of vardat Exh.P.13 was prepared. After recording statements of a number of witnesses and carrying progress of investigation further , S.H.O. concluded that first F.l.R; in Crime No.148181 was false. He took steps for cancellation of that F.I.R. S.H.O. himself as complainant Filed second F . I . R in Crime No.l/82 on 3‑1‑1982 at 12‑00 noon for offence under sections '102' 307/34, P.P.C. In this F.I.R. which is Exh.P.16 on the record Yusaf and Haji Jumo have been shown as accused persons The version in second F.I.R. is that on 23‑12‑1981 in the morning HaIZ Jumo` his brother vYousif Teveno and their friend Bashir went to the fair of Khairpur Nathan Shah. Haji Jumo and Yousif returned by bus and at 7‑30 p.m. got down at Burdo bridge. Tooh s/o Arab Khoso and l Ghulam Muhammad Gachal were present there and all the four started going towards Khondi village by the top of Saleh Shakh. On the way there was exchange of harsh words and abuses between them after which Tooh and Ghulam Muhammad went to village Khondi while Haji Muhammad Yousif went to their village. Yousif took his licensed gun and Haji Jumo took his hatchet and concealed themselves in Saleh Shakh. At 10‑00 p.m. Tooh and Ghulam Muhammad reached there and they were challenged by Yousif and Haji Jumo. Yousif fired from his gun at Tooh who became injured and Ghulam Muhammad also sustained injuries from firearm. On the cries came to the spot Haji Qassim s/o Ramzan Bachal s/o Abdul Rehman and Allahdino s/o Khuda Bux who were apprised about the facts by Yousif and Ghulam Muhammad. Took expired. P.W.11 S.H.O. Abdul Razzak in his deposition before the trial Court testified about the facts of the case as stated above and after getting new. angle in the story carried on further investigation on those lines. On 13‑1‑1982 he arrested Haji Yousif and Haji Jumo vide mashirnama Exh.P.6. Yousif produced his licensed gun alongwith licence. Gun was put into sealed parcel. Haji Jumo produced hatchet which was not stained with blood and secured vide Exh.P.7. On 28‑1‑1982 S. H .0. challaned Haji Yousif and Haji Juman under section 302, P.P.C. He sent incriminating articles to Ballistic Expert and chemical examiner and.after completing other steps of investigation, he presented challan in the Court. In the trial Court prosecution examined 11 witnesses in support of its case. P.W.1 is Dr. Abdul Fatah, who conducted post‑mortem examination on the dead body of Tooh on 24‑12‑1981. He found lacerated punctured wounds on right shoulder, right back side of chest and left leg. This Doctor also examined injuries of Ghulam Muhammad and found one lacerated punctured wounds on his left side of abdomen. Injury was simple caused by firearm. P.W.2 is Mr. Khaimchand Mu khtiarkar and F.C.M. He recorded 164 Cr.P.C. statements of P.Ws. Haji Qassim, Bachal and Allahdino. P.W.3 is Constable Nek Muhammad Shah corpse‑bearer. P.W.4 is Ghulam Muhammad who is examined as eye‑witness of the incident. Next witness is Hall Qassim. He should have been P.W.No.5 but by mistake in the paper book, his number is repeated as

4. We treat him as P.W.No.4‑A so that sequence of number should not be broken. Haji Qassim claims that he heard reports of gunfire and came to vardat. He found Tooh and Ghulam Muhammad lying injured on the ground. Injured witness Ghulam Muhammad informed him about the incident. Yousif and Jumo armed with guru and hatchet respectively were present there. This witness was declare.] hostile. P.W.S is Allahdino who also came to the spot on hearing reports of gunfire. He was declared hostile. P.W.6 is Shah Muhammad Mashir. In hip presence Juman and Yousif were arrested and Jumo produced his gun vide Exh.P.6. Yousif produced his hatchet vide Exh.P.7. (P.W.7 is missing in the paper book). P.W.8 is Ghulam 'Hussain Mashir. He has prepared mashirnamas of injuries of Ghulam Muhammad Exhs.P.10 and P.11 and inquest report Exh.P.12. He also attested mashirnama of vardat Exh.P.13. He did not support prosecution case and was declared hostile. P.W.9 is Qaisar who deposed that deceased Tooh told him about exchange of harsh words between him and Yousif and Haji Jumo. P.W.10 is Haji Shaft Muhammad Tapedar who has prepared sketch of vardat Exh.P.14. P.W.11 is S.H.O. Abdul Razzak who has investigated the case. Prosecution has produced report of Chemical Examiner Exh.P.17 in which the finding is that blood on earth is disintegrated and its origin cannot be determined. Finding in the report of Ballistic Expert Exh.P.18 is positive. In the trial Court appellant Yousif in his statement under section 342, Cr.P.C. denied prosecution allegations and stated that his gun was recovered by police from his house in his absence and he was not present on the night of incident at vardat. His brother informed him about robbery committed by four persons out of whom two were identified in the light of torch as Tooh and Shafoo. Jumo and Bashir were robbed of their money and watches. Shafoo and an unidentified culprit opened fire in which their own companions were injured. Unidentified injured disclosed his name as Ghulam Muhammad. Jumo took the injured in the Jeep to the police station and on the way Tooh died. F.I.R. was lodged by Jumo. Statement under section 342, Cr.P.C. of Jumo is same as that given by his brother Yousif. Both Jumo and Yousif were examined on oath and were subjected to the cross‑examination. They did not examine any other witness in defence. We have heard at length Mr. Muhammad Hayat Junejo, counsel for the appellant and Mr. Rashid Tariq for A.G. Sind for State. Learned Counsel for the appellant has submitted before us that in this case two F.I.Rs. have been registered arising from the same occurrence and the second F.I.R. being not a counter‑case cannot be allowed to be registered on the ground that first F.I.R. is false. In such case complainant can be proceeded against for offence under section 211, P.P.C. There is substance in the contention of the learned counsel. F.I.R. is registered under section 154, Cr.P.C. which contemplates that every information relating to the commission of a cognizable offence is to be reduced to writing and is to be signed by the person who gives such information and then the substance thereof shall be entered in a book to be maintained in a form as the Provincial Government may prescribe in that behalf. Section 155, Cr.P.C. further provides for making entries in respect of non‑cognizable cases in the station diaries. It is further provided therein that the non‑cognizable case is not to be investigated by the police officer without an order of Magistrate who is empowered to do so. Section 156, Cr.P.C. empowers the incharge of police station to investigate any cognizable case without the order of the Magistrate of the area excepting offences under sections 497 and 498, P.P.C. Section 157, C r. P. C . lays down procedure for the conduct of investigation where cognizable offence is suspected. Now if sections 154, 156 and 157 are read together, it would appear that investigation in a cognizable case can commence with information supplied from any source and then it is upto the Investigating Officer to investigate it A in, such a manner so that ultimately he may find out the truth‑In these provisions once the investigating machinery is set in motion after registration of F.I.R., there is no room for filing of second F.I.R. but the investigation can continue without hindrance even if in the result of the investigation culprits are found to be different persons who are not mentioned in F.I.R. In the case of Kaura v. State and others in Civil Petition for Special Leave to Appeal No.95‑R of 1976, decided on 2nd June, 1976 but published late 1983 S C M R 436, it has been held that if there is first information report under section 154, Cr.P.C. on the basis of which the case is registered then in respect of the same occurrence second F.I.R. was uncalled for notwithstanding the divergent version contained therein because police is not only competent but also is duty bound to unearth true facts and trace the real culprits. On this point in support reference can also be made to the case of Ghulam Siddique v. S.H.O. Saddar, Dera Ghazi Khan and others P L D 1979 Lah.

263. From the case‑later cited above position emerges that once investigation is taken in hang on the basis of F.I.R. registered, then the Investigating Officer is B competent to carry the investigation to a finale even if subsequently it is found that real culprits are not the same as were mentioned in the F.I.R. Police Officer has vast powers during the investigation and can even arrest the persons who are not named in F.I.R. as accused persons provided during the course of the investigation, he is able to collect material of incriminating nature to connect such persons with commission of offence. On the subject‑matter mentioned above, Mr. Rashid Tariq appearing for State contended, rather feebly, that second F.I.R. is not barred under the law and cited three reported cases in support of that proposition. Reliance by the learned Counsel is misplaced for the reason that reference .to second report in those cases is with regard to the report under section 173, Cr.P.C., which in common legal parlance is also called 'Challan'. Reference to second report in that context has been misunderstood as second F.I.R. In order to keep the record straight. We make reference to the cases cited by learned Counsel. In the case of Atta Muhammad v. I.G.P., West Pakistan and others PLD 1965 Lah. 734, Division Bench of the West Pakistan High Court (as it was then) held that police is competent to carry out multiple investigations in the same case and in that context, submission of final report under section 173, Cr.P.C. is no bar and further police is competent to file second report as result of subsequent investigation. In the second case of Muhammad Akbar v. State and another 1972 SCMR 335 Supreme Court of Pakistan. has held that Investigating Officer is not debarred from submitting fresh report in supersession of earlier one under section 173, Cr.P.C. Third case cited is Hasil Baluch v. D.I.G. (Police) Crimes and others 1983 PCr.LJ 2357 in which it is held that second investigation in the same case is not forbidden. In other words these three cases cited by Mr. Rashid Tariq on principle support the contention of Mr. Junejo to a great extent. In the instant case, therefore, we hold that there was no need or justification for the Investigating Officer to file himself as a complainant second F.I.R. because even without doing so he was quite competent under the law to continue the investigation and arrest persons against whom there was material to connect them with the offence regardless of the fact whether they were named in F.I.R. as accused persons or not. The scope is so wide that the Police Officer can arrest even complainant as an accused person if during the investigation he comes across material and evidence which connects complainant with commission of crime. In view of what is stated. above the question will arise now as to whether the act of the Police Officer in registering the second F.I.R. would amount to the irregularity or illegality and whether the same is curable under section 537, Cr.P.C. Section 537, Cr.P.C. envisages that no finding, sentence order passed by the Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, report by Police Officer under section 173, summons, warrants, charges, proclamation, order, judgment or other proceedings before or during the trial or in the mode of trial, unless such error, omission or irregularity has in fact occasioned a failure of justice. In the instant case filing off second F.I.R. is a defect or irregularity during the investigation which stands cured under section 537 Cr.P.C. because cognizance has been taken by the Court of competent jurisdiction on the basis of report filed by the Police Officer under section 173, Cr.P.C. Moreover no objection was taken on this point in the trial Court anti we are of the considered view that on account of this lapse no failure of justice is occasioned. We take up now appraisal of evidence produced in this case. Prosecution owns second F.I.R. lodged by 1.0. himself as complainant after a delay of 11 days. Most important piece of evidence in this case is ocular testimony of injured eye‑witness Ghulam Muhammad. His statement under section 161, Cr. P.C. was recorded on the same day when first F . I . R . was registered but at that time much importance was not attached to the police statement of this witness for the reason probably that he was at that time being treated as accused. 1.0. has explained in his evidence before the trial Court that after he got recorded statements under section 164, Cr.P.C. of witnesses Haji Qassim, Bachal and Allah Dino on 30‑12‑1981, he came to the conclusion that first F.I.R. was false and he recommended to the S.P. for cancellation of first F.I.R. and he recorded on behalf of State second F.I . R . as complainant in 154, Cr. P. C . register. Assuming without conceding for the time being that explanation of 1.0 is reasonable, even then anchor‑sheet of prosecution case is deposition of injured eye‑witness Ghulam Muhammad, which has been assailed mainly on the ground that he has lied in his sworn testimony. Second F.I.R. was registered in accordance with statement of this witness recorded on 23‑12‑1981. According to second F.I.R. at the time of incident, Yousif fired from his gun at Tooh, who was hit in the shoulder and pellets also hit Ghulam Muhammad and they both fell down injured. On cries were attracted to the spot witnesses Qassim, Bachal and Allah Dino to whom Yousif and Ghulam Muhammad narrated the fact. In his evidence in examination‑in‑chief Ghulam Muhammad stated that Yousif fired from his gun, which hit Tooh on his shoulder and he also received injuries from pellets fired in the same shot and he and Tooh both fell down injured. This assertion that deceased Tooh and this witness were hit by one shot fired by Yousif is falsified by medical evidence. P.W.1 Dr. Abdul Fatah has stated in his evidence that deceased Tooh sustained four punctured wounds on right shoulder joint as wound of entry and two punctured wounds on the right side chest back as wound of exit and multiple punctured wounds on the left side of lower part of left leg. According to the doctor wounds of deceased were result of two shots fired at him. Wounds on the left leg were result of second shot. Doctor further deposed very categorically that injuries of P.W. Ghulam Muhammad would be result of third shot. This statement of the doctor is not disputed or challenged by the prosecution and no attempt was made by the prosecution to ask any question in .re‑examination to clarify this matter .On the question of conflict between ocular and medical evidence, it is held by the Supreme Court of Pakistan in the case of Bagh Ali v. Muhammad Anwar and another 1983 S C hl R 1992 that prosecution and not the accused is obliged to clarify , position, when there is apparent contradiction in medical report and ocular testimony. It is held in the case of Sardar Baig v. State 1978 P Cr. L J 690 that if injured eye‑witness stands clearly belied by medical evidence, then in those circumstances, medical evidence is to be preferred and further it would be highly dangerous to rely upon evidence of such witness for the. purpose of conviction. Injured eye‑witness Ghulam Muhammad stated in his evidence that after the incident accused persons confessed to the witnesses that they had fought with deceased Tooh and him but there is no mention of such extra‑judicia: confession by accused in the second F.I.R. or statement of this witness recorded on 23‑12‑1981. 1.0. has confirmed this omission. P.W. Ghulam Muhammad also lied in his deposition when he stated on oath that after the incident deceased Tooh was semi‑conscious and witnesses talked with him. This is contrary to the prosecution case, which is to the effect that after the incident, Tooh remained unconscious and died on the way in the jeep. This witness stated in his evidence that he remained in hospital for 9/10 days and 1.0. made inquiries from him again in the hospital. As against this medical report Exh.P.2 in respect of injuries of this witness clearly shows that he was examined on 24‑12‑1981 and there is no mention in it that he was hospitalised as claimed by him. Doctor in his evidence also did not say any such thing. In Exh.P.2 columns of dates of admission and discharge are cross‑examined indicating nothing to say. 1.0 has not said in his evidence that he recorded further statement of this witness in the hospital or made further inquiries from him in the hospital. In Exh.P.2 injuries of this witness have been shown as simple in nature. P.W. Ghulam Muhammad also stated in his deposition that after the incident during drive in the jeep towards police station Head Constable was making inquiries from him. It is not the case of prosecution that any Head Constable came to the spot after incident and accompanied injured Tooh and Ghulam Muhammad in the jeep to the police station. This witness further deposed before the trial Court that after the incident boat accused returned to the spot alongwith police after 2 or 21 hours of the incident and at that time, he was lying injured on the ground and P.Ws. Haji Qassim, Bachal and Allah Dino were also present. This assertion is directly opposed to the prosecution case. This witness has further named that Head Constable, who is claimed to have come to the spot as Mashooq Ali Kalhoro. Prosecution has not admitted this claim of P.W. Ghulam Muhammad. Lastly this witness stated in his evidence before the trial Court that he was never convicted in Sind Crime Control Act but admitted that he had been involved in theft cases by waderas. In view of discrepancies pointed out above in the evidence of injured eye‑witness Ghulam Muhammad, it can be said safely that F this witness has not sanctity for truth and has lied with impunity. This witness has, therefore, rendered himself as unreliable. Now let us see as to what is corroborative evidence available with prosecution to supplement faulty and inherently defective statement of this witness. Prosecution had proposed to produce three witnesses who were attracted to the spot on commotion and saw accused persons present there immediately after the incident. P.W.4 is Haji Qassim, who is one such witness. He did not support prosecution case in the trial Court and was declared hostile. Likewise P.W.5 Allahdino also did not support prosecution case in the trial Court and was declared hostile. Both the witnesses claimed that injured Ghulam Muhammad did not give them details of incident, when they arrived at the spot. P.W. Bachal is not examined and no reason is assigned by A.P.P. as to why he has not been examined. Vide application Exh.22 A.P.P. closed prosecution case without stating reason for non‑examination of P.W. Bachal from which inference is permissible that had he been examined, he would not have supported prosecution case. Prosecution has examined P.W.2. Mr. Khemchand Mukhtiarkar & F.C.M., who recorded and produced statements under section 164, Cr.P.C. of witnesses Haji Qassim, Bachal and Allahdino. These statements are on the record as Exhs.P.3, P.4 and P.5. These statements were not recorded in presence of accused, who were not given any 'opportunity, to cross‑examine these witnesses, hence mandatory requirements of section 265‑J, Cr.P.C. were not fulfilled and such statements cannot be used against these witnesses as substantive evidence after they were declared hostile. Prosecution is, therefore, unable to take any benefit from the evidence of these, witnesses from reasons aforesaid. Now we take up evidence relating to recovery of crime empty from the spot and gun from Yousif appellant. Eye‑witness Ghulam Muhammad stated that appellant Yousif fired one shot from his gun from which he and deceased both became injured. No claim is made that any further attempt was made to fire second shot. Gun recovered from Yousif appellant is double barrel, hence it is not likely that need would have been felt to eject the empty when there was no intention to fire second shot because second shot could be fired from double barrel gun without ejecting spent empty. Recovery of crime empty from the spot is witnessed by P.W.8 Mashir Ghulam Hussain, who did not support prosecution case in the trial Court and stated that police did .not visit vardat and, further denied attestation of mashirnama of vardat Exh.P.13. This witness also denied recovery of crime empty from the spot. Co‑mashir Ghulam Nabi was not examined. There is application Exh.No.15 on the record at page 106 of paper book in which APP has requested for summoning co‑mashir Ghulam Nabi which was allowed. There is another application Exh.22 on the record filed by Ghulam Nabi stating therein that he did not know about that case and police had shown him as mashir. There is further note of A.P.P. on this application to the effect that he was giving up mashir Ghulam Nabi and closed the case of prosecution. In these circumstances prosecution has failed to prove recovery of crime empty through mashirs. Now before we go to the evidence of 1.0. there is on other, inherent defect in mashirnama of vardat Exh.P.l

3. In this document details are mentioned about small sack of 'Papal' lying on the ground, j presence of Khabar and Babul trees and dung tying near vardat but strangely enough there i5 no mention of empty cartridge lying at the spot. At the end of contents, mention is made about recovery of empty and sealing it but perusal of original document shows that lasts line with regard to crime empty is subsequently and forcibly squeezed in by way of interpolation, although when mashirnama was previously prepared, no room was left in the natural course for making any such subsequent addition. Original mashirnama Exh.P.13 in the record very clearly shows that this addition about recovery of crime empty is an afterthought and was made subsequently in unnatural manner. This manipulation leaves sufficient room for doubt that empty was not found at the spot, when mashirnama was prepared and has been added subsequently by way of padding. P.W.6 Shah Muhammad Mashir witnessed arrest of appellant, Yousif and acquitted co‑accused Jumo and recovery of gun and hatched from them respectively. In his evidence in examination‑in‑chief he has not said a word about sealing of gun and it appears from his evidence that gun was not sealed. He was not cross‑examined by defence. He produced mashirnama of recovery of gun from Yousif as Exh.P.8. It was on purpose that no question was put to this mashir about sealing of gun because at the time when gun was recovered, it was not sealed and in mashirnama, no such mention is made about sealing. Subsequently after attestation of mashirnama Exh.P.8 one sentence has been added rather squeezed in with different ink. Thai is' why prosecution was silent when this mashir did not say in his J examination‑in‑chief about not sealing of gun because he had admitted having attested mashirnama Exh.P.8 in which subsequently manipulation was made by adding sentence with regard to sealing of gun. Notl only that but this dishonesty becomes stark naked when mashirnama Exh.P.7 in original is perused which is with regard to the recoverv of hatchet from co‑accused Jumo. In this document also description of hatchet was left out at the time when this document was prepared and description was added subsequently in different ink. Perusal of original mashirnama of arrest Exh.P.6 shows that date and time of arrest ,have been added subsequently in different ink. There is no dispute about the fact the gun is licensed and. belongs to appellant Yousif, hence he does not deny its ownership and recovery but he has claimed in his 342, Cr.P.C. statement that it was taken away from his house in his absence. The most important question is whether crime empty and gun were sealed promptly all the time of recovery in presence of mashirs. This is where prosecution case has back‑fired because there is no legal and believable evidence K emanating from mashirs as has been discussed above. Appellant Yousif examined himself on oath and stated that gun belonged to him and was licensed in his name but no evidence has been produced that gun was sealed when it was recovered and likewise no evidence is produced to show that crime empty was sealed at the time of recovery. On this subject legal requirement is that if crime empty is recovered before recovery of weapon, then same should be sealed at once and sent to ballistic expert even without waiting for weapon because this 1 would be best precaution to minimise chances of manipulation. In the case of Muhammad Shaft and another v. State P L D 1968 Lah. 869, it is held that crime empty recovered before recovery of gun should have been sent to the expert conformably to the instructions, which enjoin that crime empty should invariably be sent to the expert after recovery so that chances of concocting empties after recovery of firearm are minimisgd .to the extreme. In the instant case, crime empty was recovered on 24‑12‑19811 and gun was recovered on 13‑1‑1982 and in spite of the fact than sealing of these articles is not proved, these allegedly sealed parcels M were sent to the ballistic expert with inordinate delay. It appears from ballistic report Exh.P.18 that sealed parcels were received in the laboratory on 1‑12‑1982 from the office of S.P. Dadu. Now the question arises as to why parcels were received in the laboratory after a delay of about one year. In this context 1.0. Abdul Razak stated in the trial Court in examination‑in‑chief that he sent the parcels to chemical examiner and ballistic expert. In cross‑examination he denied suggestion that parcels were sent through S.P. but asserted positively that he sent the parcels directly to the expert. Saying so he admitted in unequivocal terms that he did not remember the rata on which he sera parcels of gun and empty to the expert. He .consulted police file and then stated that there was no such letter in it nor 'there was any such note in his diary showing that he sue the parcels straight to the expert. Then he stated that tie obtained permission from S.P. that is why expert has 'stated in the report that parcels were received from S.P. This witness 1.0. further stated after consulting police file that there was no such report in his diary showing that he had requested S.P. to accord permission for sending articles to the ballistic expert. Men may tie but documents don't. Exh.P.18 clearly shows that parcels were received in they laboratory from the office of S.P. with considerable delay which wash 'inordinate and no explanation has beer, giver: by prosecution fort such delay. Those parcels remained with I.O. and in the office of S.P. for a very long time and no evidence has peer, produced in proof of the fact that parcels were sealed at the time of recovery. We are not prepared to believe I.O. in respect of recoveries in the absence of mashirs because 1.0. has conducted investigation of this case dishonestly which is amply proved from interpolations made in the documents stated above. Delay of about one‑ year in sending parcels to the laboratory, is highly suspect and fatal to prosecution case because during that time any thing could have happened to the articles. In the case of Waryam and another v. State 1985 P Cr. L. J 162 positive report of ballistic expert was held to be of no consequence when gun and empty remained in custody of police for eight days before they were sent to the expert. In the instant case, we, therefore, view report of expert with doubt and do not‑ purpose to rely on it because we are not satisfied that empty and gun were sealed promptly when they were recovered. Probability of manipulation cannot be ruled out particularly in view of what we have seen happening to other documents prepared by 1.0. as stated above. We are not unmindful of the fact that in this case two F.I.Rs. were filed and 1.0. took as many as 11 days to conclude that first F . I . R . was false and he himself became complainant to file second FA.R. 1.0. was on the look taut to collect evidence to support the case set out in second F.I.R. and in that excessive enthusiasm, he went to the extent of even interpolations. Upshot of the whole discussion of evidence produced in this case is that prosecution has failed miserably to prove case against appellant beyond doubt. All pieces of evidence produced suffer from inherent deficiencies and one defective piece of evidence cannot corroborate another piece of defective evidence. We, therefore, give benefit of doubt to the appellant and set aside his conviction and sentence. In the result appellant is acquitted and appeal is allowed., Reference for confirmation of death sentence is rejected. If not wanted in any other case, appellant be released at once. M.Y.H./Y‑19/K Appeal allowed.