1976 P Cr (PLP)

NOOR UL ARFIN, J.‑--This judgment decides Confirmation Case No. 19 of 1973 with Criminal Appeal No. 55 of 1973 and Criminal Appeal No. 54 of 1973. The appellant is Sarang, son of Ganhwar Malghani. By judgment dated 13th February, 1973, the learned Additional Sessions Judge, Jacobabad, convicted the appellant under section 302, P. P. C. for the murder of one Mehar and sentenced him to death, and, in a separate trial, in Sessions Case No. 169 of 1971, further convicted him under section 13‑E of the Arms Ordinance, 1965, and sentenced him to R.I. for one year. The prosecution case, as set out in the First Information Report (Exh. 12), is that at Tipahri time on 23‑6‑1970, the deceased, Mehar, his brother, P. W. Haji and his cousin Mehar Ali left Deb Kohiri with their cattle for Pathanwah, as they feared repression from the accused party who had shown suspicion, as the deceased. Mehar, had murdered their relation Jumo. On the road between Miranpur and Tajodero, near a bridge adjoining a watercourse, these three persons were accosted by the appellant, Sarang, and the co‑accused Nazir, who came out from the jungle, being armed with gun and Nasir with hatchet. Sarang tired two gunshots at the decease., Mehar, who fell down on the spot and succumbed to the injuries. P. Ws. Haji and Mehar Ali were threatened to remain away from the deceased, otherwise they also would be killed. Thereafter, the accused ran away towards the south. P. W. Mehar Ali was left to look after the dead body of the deceased, Mehar, but P. W. Haji went back to Deb Kohri, where he informed his cousin. P. W. Ali Madad, of this incident P W. Ali Madad accompanied P. W. Haji to the place of incident and found (hat the deceased had suffered two gunshot injuries on his chest, in consequence whereof he had died. He, therefore, went, according to the prosecution, and lodged the First Information Report at the Police Station Tajodero at Dodapur. The defence of the appellant, Sarang, and co‑accused, Nasir, was one of total denial and both of them pleaded that they had been implicated in the case due to enmity. On the basis of Ali Madad's First Information Report, the police investigated the offence, recorded the statements of prosecution witnesses, prepared the inquest report, 'Mashirnamas' of vardat, of arrest of the accused persons and of securing shotgun on the pointation of appellant Sarang. Both the accused were challaned before the committal Court, from where they were sent up for trial before the learned Additional Sessions Judge, who acquitted accused Nasir, but convicted the appellant, Sarang, as aforesaid.

2. The death of deceased Mehar in consequence of two gunshot injuries suffered by him on his chest is not in dispute. According to the medical evidence, consisting of the deposition of Medical Officer, Jacobabad, and the post‑mortem report, the following injuries were found on the body of the deceased (1) 6 punctured lacerated type of wounds with blackening about ' in diameter into cavity the chest 3' on left side and 2' on right of the chest (wound of entry). (2) 1 lacerated punctured type of wound about ' in diameter over the right side chest with blackening into structure deep lateral side (wound of entry). (3) Four punctured lacerated type of wound ' in diameter over the back of chest 3 on left and 1 on right side back (wound of exit). On internal examination, two ribs on each side of the chest were found fractured and both right and left lungs lacerated, so also the liver and cavity of the abdomen. According to the medical evidence, death was due to shock and haemorrhage caused by the aforementioned injuries all of which had been found to be ante‑mortem. In the opinion of the Medical Officer, the death was instantaneous in consequence of these injuries.

3. The main question is whether the prosecution evidence fixes the identity of the person or persons who committed the murder of deceased Mehar, and whether, on the basis of this evidence, the appellant, Sarang, can be identified as a person who is guilty of this offence. Now, 'the peculiar feature of this case is that before the committal Court one eye‑witness of the incident, namely Mehar Ali was examined, but he did not support the prosecution at all and stated that he has not seen the incident himself. The other witness, P. W. Haji, was not examine;' before the committal Court and was produced only before the trial Court. In the trial Court, P. W. Haji denied tick. statement contained in P. W. Ali Madad's First Information Report that the deceased had shifted from Deb Kohiri, or was going towards Pathanwah with cattle heads. P W. Haji went to the extent of stating that he had given statement under section 164, Cr. P. C. only under police pressure, though he did accuse the appellant and co- accused Nasir of committing the murder of the deceased, Mehar. P. W. Haji is the only solitary eye‑witness examined before the trial Court and his evidence is sought to be corroborated by the evidence of P. W. Abdul Ghafoor, the A. S. I of Police, Tajodero, Dodapur and the Mashirnamas prepared by this Police Officer, namely, Exh. 14, 'Mashirnama of the vardat and the inquest report of the dead body, Exh. 15, and further sought to be corroborated by Ghulam Rasool, S. D. I. at Garhi Elhairo, who took both the accused persons into custody under 'Mashirnama' Exh. 17 and recovered the gun at the pointation of the appellant. Sarang, under 'Mashirnama' Exh.

18. Thus, the only prosecution evidence is the evidence of P. W. Haji. A. S. I. Abdul Ghafoor, S. D. I. Ghulam Rasool, medical evidence and other 'Mashirnamas' Exhs. 14, 17 and

18. None of the Mashirs themselves was examined by the trial Court, presumably for the reason that the Mashirs did not support the prosecution version before the committal Court. The Police Officer, who recorded the First Information Report, namely, S, H. O. Bashir Ahmad, was also not examined. Be that as it may, the 'Mashirnama' of the Vardat which has been brought on record is totally inconsistent with the prosecution version. According to this 'Mashirnama' (Exh. 14), the vardat is on a bridge of an abandoned watercourse in Deh Kohiril on the road leading from Miranpur to Tajodero. The body of deceased Mehar was found lying on a cot in a loin cloth at a distance of about fifty paces from the actual vardat. Gunshot injuries were found on the body and these injuries were also found to be bleeding. But no blood was found at the vardat, that is, at the place where the deceased fell down in consequence of the gunshot injuries. The question arises why no blood was discovered at the vardat and who brought to the vardat the cot on which the dead body of the, deceased, Mehar, was found lying and, further, who removed the shirt of the deceased from his body, the deceased's body being found only in loin cloth which itself did not have any blood steins. The first informant, P. W. Ali Madad, who himself did not witness the incident, does not say that he took the cot to the vardat, though he admits going there to verify whether or not Mehar had died in consequence; of the gunshot injuries. Another peculiar feature of the case is that the First Information: Report is said to have peen recorded at 8‑30 p.m. on the same day when the incident occurred. But the police had reached the vardat B at 5‑00 p.m. as stated by P. W. Haji in his evidence. These discrepancies have not been explained by the prosecution. The 'Mashirnama' of the vardat (Exh. 14) would show that the actual vardat is not the place where the dead body of the deceased was found by the police and the Mashirs lying on the cot or even at a distance of fifty paces therefrom. It would be natural to expect some blood at the vardat itself, but the Mashirnama' of the vardat expressly states that no blood was found at the vardat. This creates a doubt with regard to the actual place where the incident occurred, and it would appear that deceased Mehar was killed at some other place, but his dead body was brought to the place there it was found on a cot by the police and the Mashirs. If the incident occurred at some other place, then this fact would be inconsistent with the prosecution version and the evidence of the only eye‑witness examined at the trial, namely, P. W. Haji, itself becomes suspicious, that is, it becomes doubtful whether he was at all an eye‑witness of the killing of the deceased. It should be noted that this witness admitted that he had given statement under section 164, Cr. P. C. and in the Court itself under police pressure. Both the first informant, P. W. Ali Madad as well as the alleged eye witness P. W. Haji have stated that they first went to the Police Station at Tajodero, where they met Police Constable Lai Muhammad and from there they went to Dodapur, where their First Information Report was recorded. What version was given at the Tajodero Police Station has not come out at all in the prosecution evidence. Further, according to the sketch of the incident, Exh. 21, prepared by the Tepedar, point 'B' is the place from where gunshots were fired at the deceased, and this point '13' is at a distance of 100 feet from point 'A', where the dead body of the deceased was found lying on the cot. But the nature of the injuries shows that the distance at which the gunshots were fired at the deceased could not be more than 10 feet. This further strengthens the doubt which we entertain that the actual vardat is not the place which is shown in the Mashirnama' Exh. 14, and that the deceased was killed at some other place, but his dead body was found and placed on the cot at the place mentioned in this Mashirnama. Further, the other eye‑witness Mehar Ali, who was examined before the committal Court, was not produced before the Sessions Court or were any of the Mashirs, who were signatories to the 'Mashirnamas' mentioned above, examined at the trial Court. Another interesting feature of the case is that the gun allegedly used by the appellant was examined by the ballistic expert only 17 months after the incident which took place on 23‑b‑1970, whereas the gun was sent to the ballistic expert together with the crime empty as early as 26th. August, 1970 This delay is, in our opinion, rather inordinate and militates against the acceptance of the evidence of the ballistic expert. Another aspect of the prosecution evidence, which has not been explained, is that according to the 'Mashirnama' of the vardat, the crime empty was found covered under earth at the vardat. Ordinarily one would expect crime empty lying on the surface, and not under the earth.

4. Thus, in our opinion, the prosecution evidence suffers from serious infirmities, and we are of the view that this evidence has failed to fix the identity of the person who killed the deceased Mehar. Consequently, the prosecution evidence has not established the guilt of the appellant E beyond reasonable doubt. We would, therefore, reject the reference and accept the Criminal Appeal No. 55 of 1973 tiled by the appellant against his conviction and sentence, and, for the same reasons, Criminal Appeal No. 54 of 1973 filed by the appellant against his conviction and sentence under section 13‑E of the Arms Ordinance. Appeal accepted.