1968 P Cr (PLP)

M. JAMIL ASGHAR, J.‑ Muhabbat, Rehman and Allah Yar appellants were convicted under section 302/34, P. P. C. and each of them was sentenced to death for the murder of Ghulam deceased by the learned Additional Sessions Judge, Lyallpur. They were also convicted under section 452/34, P. P. C. and each of them was sentenced to four years' rigorous imprisonment with a fine of Rs. 250 or in default to undergo further rigorous imprisonment for one year. The sentence under section 452/34, P. P. C. was to take effect if the death sentences were not confirmed by this Court. The appellants, against their convic tions and sentences, have preferred this appeal. The learned Additional Sessions Judge has made a reference under section 374, Cr. P. C. for the confirmation of death sentences awarded to the appellants. Since both the appeal and the reference arise out of the same judgment they will be disposed of together by this order.

2. The appellants are related inter se. The mothers of Muhabbat and Rehman were sisters. Allah Yar is the son of the sister of Rehman. They are residents of Chak No. 228 R. B., District Lyallpur. They are also related to the deceased and the three eye‑witnesses, namely, Muhabbat (P. W. 9), Walayat (P. W. 10) and Mst. Bakhi (P. W. 11). Walayat P. W. is the son of the deceased. ‑ Muhabbat P. W. is the cousin of the deceased. Mst. Bakhi P. W. is the wife of Walayat P. W. The mothers of Muhabbat and Rehman appellants were the sisters of the father of Mst. Bakhi P. W.

3. Sometime prior to the occurrence, under consideration, one Allah Yar, a brother‑in‑law of Mubabbat appellant. a nephew of Rehman appellant, and a cousin of Allah Yar appellant, was murdered by one Jalla and his wife, Mst. Haliman (the deceased in Criminal Appeal No. 596 of 1966/Murder Reference No. 160 of 1966). Ghulam, deceased in the present case, used to help Jalla and Mst. Haliman in that murder case. This case was resulted by the appellant in the present case. According to the prosecution this constituted the motive for the occurrence in the present case.

4. On the day of occurrence, i.e. 9th of September 1965, at about maghrib prayer time, Ghulam deceased was present at his dhari, while his son Walayat P. W. was present at his own dhari. The distance between the two dharis is about 2 killas. At the time of the occurrence Mst. Bakhi P. W., wife of Walayat P. W., went to the dhari of the deceased to serve him tea. After the deceased as taken his tea, she began to clean the utensils, while the deceased laid on a cot. After a short while all the appellants turned up there. Muhabbat was armed with a gun, Rehman with a balam and Allah Yar with a hatchet. Muhabbat shouted a lalkara to the deceased to take care of himself as he had come and after that he fired a shot with his gun. The deceased got up from the charpoy and shut himself up in a room in the dhari. The outer wall of the dhari was about four feet high. Mst. Bakhi P. W. went outside the dhari and stood there. Walayat P. W. on hearing the gunshot rushed to the dhari of the deceased and saw the appellants from over the outer wall, standing in the dhari. Muhabbat P. W. at that time was returning from Lyallpur and when he came near the dhari of the deceased, he heard the report of the gunshot and so he rushed there and also saw the appellants present there. The appellants started pushing the doors of the kotha, where the deceased had shut himself up, and ultimately succeeded in forcing it open as one of the shutters fell on the ground. The appellants then went' inside the room and caught hold of the deceased. Allah Yar and Rehman appellants threw the deceased on the ground and Muhabbat appellant placed his gun on the neck of the deceased and fired. After that he fired a second shot at the head of the deceased near the neck. Allah Yar and Rehman appellants also gave him blows with their respective weapons. The deceased succumbed to his injuries at the spot. The appellants then dragged the dead body of the deceased out of the room and threw it near the door of the kotha and went away, while firing shots in the air. After a short while. Mutalli (P. W. 8), who is the son of the maternal uncle of Muhabbat P. W., arrived at the spot and the P. Ws. related the incident to him. As there was curfew during the night on account of Indo Pakistan War, Mutalli P. W. on the following day, i.e. the both of September 1965, proceeded towards Police Station Sadar Lyallpur in order to lodge a report with the police. The distance between the place of occurrence and the Police Station would be about eight miles. In the way at about 7‑30 a.m., he met Sub‑Inspector Rana Abdur Rashid (P. W. 12) in the office of the Union Council of Chak No. 215 R.B. and made a statement, the copy of which is Exh. P. M. The original statement, which was thumb‑marked by Mutalli P. W. is on the file of Criminal Appeal No. 597 of 1966/Murder Reference No. 170/66. The distance between the place of occurrence and Chak No. 715 R. B. would be about 2J miles. The original statement of Mutalli P. W. was then sent to the police station, where a formal first information report was drawn up on its basis. Neither the formal first information report nor the original statement has been, produced in this case. The original statement, in our opinion, was the first information conveyed to and recorded by the Sub‑Inspector, which was allegedly thumb‑marked by Mutalli P. W. and it was that document, which should have been produced at the trial in order to discharge the burden, which laid on the prosecution that a first information report has been lodged in this case. The legal consequences arising as a result of this omission would be discussed presently.

5. Sub‑Inspector Rana Abdur Rashid P. W. after sending the original statement to the police station proceeded to the scene of offence, where he reached at about 8‑30 a.m. and inspected the spot at the dhari of the deceased. He found the dead body of the deceased lying in front of the kotha at the dhari. He, accordingly, prepared injury statement Exh. P. G. and inquest report Exh. P. H. of the dead body of the deceased and deputed Foot Constables Gul Faraz (P. W. 4) and Sherbaz (not examined) to take the dead body to the mortuary at Lyallpur for post‑mortem examination. From the scene of offence the Sub‑Inspector secured blood‑stained earth vide memo. Exh. P.A., and made it into a sealed parcel. He also took into his posses sion the broken wooden shutter Exh. P. 1 as it appeared to be stained with blood and bore marks of gunshot. He also found one empty cartridge Exh. P. 2 near the dead body and another empty cartridge Exh. P. 3 in the courtyard, which he took into his possession and made them into a sealed parcel. On the 12th of September: 1965, he arrested all the appellants. On the 22nd of September 1965, Muhabbat appellant, as a result of interroga tion, led the S. I. to his dhari and from a heap of bhoosa produced gun Exh. P. 4, which the Sub‑Inspector took into his possession vide memo. Exh. P. B. and made it into a sealed parcel. On the same day Allah Yar appellant produced hatchet Exh. P. 5 from a heap of bhoosa in his kotha at the dera, which the S. I. took into his possession vide memo. Exh, P. C. and since it appeared to be stained with blood he made it into a sealed parcel. The recoveries of gun and hatchet were witnessed by Muhammad Din Chowkidar (P. W. 7). It may be mentioned here that the report of the Chemical Examiner regarding the hatchet is neither on this record nor on the record, of the case "State v. Bhawal etc. and, therefore, it cannot be said that it was stained with blood and as such this recovery has corroborative value. The sealed parcel containing gun Exh. P. and two empties Exhs. P. 2 and P. 3 were sent to the Forensic Science Laboratory, Lahore, where they were received on the 28th and 22nd of September 1965, respectively. At the said Laboratory Shah Jahan Khan, Firearms Expert (P. W. 13) after examining the exhibits found that the two empties were fired from that gun.

6. Doctor Ahmad Ghulam Muhammad (P. W. 1) on the 11th of September 1965, at 11‑15 a.m., performed post‑mortem examination of the dead body of Ghulam deceased and‑ found the following injuries:‑ (1) A gunshot wound, which was wound of entry, 1 x ", on the right side of loin. There was scorching around the wound. (2) A gunshot wound, which was wound of exit, on the right side of the loin, 1' to the inner side of injury No. 1. (3) An incised wound, 21" x 1" x 1" deep on the inner side of the right arm, 2" below the axilla. (4) The skull was badly smashed, and its bones were broken into pieces and the brain matter had come out. The face had also been blown out in its upper part. In the opinion of the doctor the death of the deceased was due to shock, haemorrhage, compression and laceration of the brain resulting in the injury to the brain and multiple fractures of the skull on account of injury No. 4, which was sufficient in the ordinary course of nature to cause death. The doctor also opined that injury Nos. 1 and 2 were caused by a gunshot, while injury No. 3 by a sharp‑edged weapon. No injury was caused to the deceased by a sharp‑pointed weapon, like a balam, which was said to have been used by Rehman appellant in inflicting injuries to the deceased as stated by the eye witnesses.

7. The appellants denied their guilt and declined to produce any defence. Muhabbat and Allah Yar appellants also denied the recoveries of gun and hatchet from their possession respec tively.

8. The learned counsel for the appellants contended that the fact that the origipal statement of Mutalli P. W. which was thumb‑marked by him was not produced at the trial and instead its copy Exh. P. M. was produced, was fatal to the prosecution case. Front the perusal of section 154, Cr. P. C. which deals with the recording of first information report relating to the commission of cognizable offences it appears that any person may set the criminal law in motion by making a report under this section, and the .Information so given is called a first information report. It is the basis upon which an investigation is commenced under Chapter XIV, Part V of the Criminal Procedure Cods;, However, receipt and recording of first information report is pot a condition precedent to the setting in motion of a criminal investigation. We are fortified in this view by the judgment of this Court in case Bashir Saigol v. State (P L D 1964 Lah. 148 ). While dealing with a similar question their Lordships at page 153 observed as under :‑ "I agree in principle that is not necessary that the first inform ation report should mention the names of all or any of the accused so as to empower the investigating agency to set in motion. In fact the recording of a first information report is not a condition precedent and the police, on the receipt of credible information that a cognizable offence has been commit ted may, under the Code of Criminal Procedure or other statute or law authorising them in this behalf, start investigation without recording or drawing up a formal first information report. In case Emperor v. Khawaja Nazir Ahmad (A I R 1945 P C 18) it was observed :‑ "But, in any case, the receipt and recording of an inform ation report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as result of, information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged."

9. It is no doubt true that the evidence of first information report deprives an accused of his right to cross‑examine the firs informant on its basis, but the fact that no first information report was made or was proved at the trial would not vitiate the conviction. In view of the above the contention of the learned counsel has no force.

10. The next question which requires determination as to what is the effect‑ of statement Exh. P. M., which is the copy of the statement of Mutalli P. W. recorded by the Sub‑Inspector. Since the original statement was not produced nor proved at the trial, Exh. P. M. cannot be used for any purpose. We are fortified in this view by the judgment of this Court in case Choghatta v. Emperor (A I R 1926 Lah, 179). In that case a woman lodged a report at the police station about the murder. of her husband. The Sub‑Inspector incharge of that police Station after recording her statement in the police diary went to the spot to make an inquiry under section 174, Cr. P. C. One Baza confes sed to the crime during the course of the investigation and pointed out the scene of offence where marks of blood and struggle were observed. He also led the Investigating Officer to a raving where the dead body of the murdered man was found floating, The Investigating Officer thereafter wrote a ruqqa, reproducing therein the report of the wife of the murdered man, which has been recorded by him 'a day earlier in the diary at the police station and after adding thereto an account of the discovery of the dead body, directed the clerk of the police station to draw up a first information report. At the trial the original record of the report, i.e. the statement of the woman recorded in the diary, was not produced and instead reliance was placed on the ruqqa, which was written by the Investigating Officer. Their Lordships excluded the ruqqa from consideration and observed that :‑ "In the present case the information to the police was that entered in the Station diary on the 26th June, but the original record of that report was not proved which should have been done to make it admissible in evidence. The ruqqa of the Sub Inspector in which it was re‑produced, was not signed of thumb marked by Mst. Bakhat Bhari and that Ruqqa cannot fall within the definition of `first information'. But no information report is substantive evidence by itself. It can only be used under section 157 of the Evidence Act as a previous statement to corroborate or contradict a statement made subsequently in Court. This ruqqa, therefore, is to be excluded from consider ation and the case for prosecution is to be judged by the evidence of the witnesses produced in Court." In the present case neither the original statement, which was thumb‑marked by Mutalli P.W., nor the formal‑first information report which was drawn up on the basis of that statement has been produced, but instead only a copy of Exh. P.M. has been produced, which does not bear the thumb‑impression of Mutalli P. W. In view of the aforementioned ruling we hold that this copy cannot fall within the definition of first information and, therefore, it will have to be excluded from consideration.

11. We also find that the recoveries of weapons of offence, i.e. gun Exh. P. 4 and hatchet Exh. P. 5 at the instance oil Muhabbat and Allah Yar appellants, respectively, are doubtful. The Sub‑Inspector stated that hatchet Exh. P. 5 was found to be stained with blood and, therefore, he made it into a sealed parcel, On the record, however, we find that there is no report of the Chemical Examiner that the hatchet was found to be stained with blood or that scrapings were sent to the Serologist. This means that hatchet Exh. P. 5 was in fact, not stained with blood and. therefore, was not sent to the Chemical Examiner. Hence this recovery has no corroborative value. Now we are left with the re covery of gun Exh. P. 4 at the instance of Muhabbat appellant and the two empties Exhs. P. 2 and P. 3 from the scene of offence. According to Firearms Expert, Shah Jahan Khan (P. W. 13) the aforementioned empties were found to have been fired from the gun. These empties were taken into possession by the Sub.. Inspector on the 10th of September, 1965, vide memo. Exh. P. A, ,F while the gun was taken into possession on the 22nd of September.' 1965, vide memo. Exh. P. B. From the perusal of memo. Exh. P. B.. we find that originally the date was given as 10tta September 1965, and then it was changed into 22nd of September, 1965. The Sub‑Inspector was asked as to why the date had been tampered with and he told a blatant lie by denying that it was tampered with. The arrest of Muhabbat appellant is shown on the 12th of September 1965. If the gun had been recovered oh the 10th of September 1965, as originally written in memo. Exh. P. B. then Muhabbat appellant must have been in the polio custody on that day. It is not known why till 22nd of September` 1965, this gun was not sent to the police station for onward transmission to the office of the Director, Forensic Science Labora tory, Lahore. In view of the above the recovery of the gun has also become doubtful and the learned Additional Sessions Judge has rightly placed no reliance on it.

12. Now we are left with the testimony of the eye‑witnesses. The learned Additional Sessions Judge has placed no reliance on the testimony of two eye‑witnesses, namely, Muhabbat and Walayat, but relying on the third eye‑witness, namely, Mst. Bakih convicted the appellants. Muhabbat P. W. stated that on hearing the report of gunshot he rushed to the scene of offence and saw Muhabbat appellant placing his gun on the neck of the deceased and fired a shot and after that he is fired another shot at the head of the deceased, but before the police he stated that Muhabbat appellant had fired only one shot. He also stated at the trial than Rehman appellant armed with a barchchi and Allah Yar appellant armed with a hatchet also jointly inflicted injuries to the deceased; but from the medical evidence on the record we find that there, was only one incised injury on the deceased, which could not have, been caused by a barchchi, but only by a hatchet. He is a chance witness and is inimical towards the appellants, which fact he also, admitted in his cross‑examination, by stating that about a year ago his buffalo was stolen and he had made a report against Allah Yar and Rehman appellants and Bahawal and Fateh Muhammad. Taking all the aforementioned circumstances into consideration, his evidence was rightly discarded by the learned Additional Sessions Judge.

13. Walayat P. W. stated that he was present at his dhari when he heard a report of a gunshot from the side of the dhari of the deceased and when he rushed there, he saw from over the outer wall of the dhari all the appellants breaking open the door of the kotha and going inside it and them Allah Yar and Rehman appellants threw the deceased on the ground; while Muhabbat appellant placing his gun on the neck of the deceased fired a shot and thereafter he fired again at the deceased. Allah Yar and Rehman also gave hatchet and balam blows to the deceased. His evidence is not corroborated by the medical evidence on the record because no balam injury was found on the dead body of the deceased. He is also inimical towards the appellants because he admitted that he had to take Rs. 500 from Rehman appellant. that when he demanded that money back, Rehman appellant refused to pay, that there was an exchange of abuses between them, and that they also gave beating to each other. He, further admitted that the grandfather of Allah Yar appellant had appeared as a witness against his deceased father in a case under section 19 of the Arms Act, and that his father was convicted and sentenced to six months' rigorous imprisonment. In cross‑examination he contradicted himself by stating that since he was at some distance he could not say if any barchchi or hatchet blows were adminis tered to the deceased. If that is so, how could he see Muhabbat appellant placing his gun on the neck of the deceased and firing a shot with it, especially when the occurrence took place inside a kotha and he was standing not in front of the door of the kotha, but towards one side. He further admitted that one Mst. Began, a sister of Allah Yar appellant, was betrothed to him, but sub sequently Allay Yar appellant changed his mind and married her to somebody else, and this resulted in strained relations 'between him and Allah Yar appellant. In view of the enmity and the aforementioned discrepancies his evidence was rightly disbelieved by the learned Additional Sessions Judge.

14. Now we are left with the uncorroborated testimony of Mst. Bakhi. Mst. Bakhi P. W. in her Examination‑in‑Chief at the trial stated that after she had served tea to the deceased and was cleaning utensils, Muhabbat armed with a hatchet turned up there, that Muhabbat shouted a lalkara to the deceased asking him to take care of himself as he had come, that Muhammad fired his gun, that the deceased rushed into the kotha of the dhari and shut himself up by closing the door from inside, that the three appellants forced open the door with the result that one of the shutters of the door of the kotha fell on the ground and they went inside, that Allah Yar and Rehman threw the deceased on the ground, while Muhabbat placed his gun on the neck of the deceased and fired, that Muhabbat fired a second time at the head of the deceased near his neck, and that the three appellants then dragged the dead body out of the kotha and then ran away. In cross‑examination she stated that the first shot was fired by Muhabbat appellant from a very close quarter when the deceased was sitting in the courtyard. If that is so it is difficult to believe how Muhabbat appellant could have missed the deceased from such a close range. As already mentioned above she stated that Muhabbat had uttered a lalkara when he arrived at the spot, but this fact she did not mention before the Committing Magistrate. She also stated in cross‑examination that she had hidden herself behind a wall when the appellants had entered the kotha and, therefore, did not see what happened inside or on what part of the body the deceased was injured. In other words she went back on her statement made in the examination‑in‑chief. According to her she was present at the dhari of the deceased when the occurrence took place, because she had taken tea for the deceased. The occurrence took place at maghrib prayer time, which is not the time for people to take tea. Before the Committing Magistrate she did not mention that she had carried tea for the deceased and after tea when he was stretching himself on a cot, the appellants arrived. If Mst. Bakhi had actually taken tea for the deceased at that time, then the Sub‑Inspector would have taken into possession the tea‑pot and cups, etc. Since no such articles were taken into possession by the Sub‑Inspector, her presence at the relevant time when the occurrence took place has become doubtful. In any case she is the wife of Walayat P. W., who is admittedly inimical towards the appellants and thus it will not be safe to place reliance on her testimony unless it is corroborated by some other evidence on the record. That evidence, as already mentioned above, is lacking in this case, In view of the above we find that the prosecution has failed to bring home the guilt to the appellants beyond reasonable doubt.

15. In the result giving benefit of doubt to the appellants we accept the appeal, set aside the convictions and sentences of the appellants and acquit them. They should be released forthwith, if not wanted in any other case. Appeal accepted.