1982 P Cr (PLP)

The first three appellants, namely, Arz Muhammad, Bashir and Jamal were arrested, according to the mashirnama of arrest (Exh. 17) on 17th April 1977 at 12‑30 noon, i.e. a day after the incident and according to the mashirnama these three appellants were produced by the Nekmard of the village, namely, Muhammad Bux Dasti. The fourth appellant Faiz Muhammad was arrested on 18th April, 1977 (Exh. 23) at 6‑00 p. m. from a street in the village close to the house of the appellant. The two mashirs of arrest are P. W. 8 Fida Hussain (an ex‑constable who had been discharged from service) and Lal Khan, who was not examined. Now, according to the mashirnamas relating to securing of crime weapons, the pistol of Arz Muhammad was produced by him at 1‑30 p.m. on 17th April 1977 from his house from a corn bin lying in the courtyard of his house (Exh. 18). The pistol of appellant Bashir was produced by him from his house from the bushes kept on the roof of the house and this was recovered at 2‑30 p. m. (Exh. 19) and the hatchet of appellant Jamal was produced by him from his house at 3.15 p. m. on 17th April 1977 (Exh. 20). The two mashirs for all the three mashirnamas of recoveries of weapons are the same, namely, P. W. 10 Fida Hussain and Lal Khan. The incident had taken place, according to the prosecution case, early in the morning on 16th April, 1977 and the F. I. R. was lodged at 9‑00 a.m. after which the S. H. O. of Rukkan Police Station, P. W. 10 Muhammad Siddiq, had carried out the investigation. The Investigation Officer had searched the houses of the accused on the same day, i.e. on 16th April, 1977 for the accused as well as for the crime weapons but he could not find the same. This is in his evidence, If crime weapons had been concealed by the accused in their own houses, and they were produced from the places mentioned in the respective mashirnama relating to their arrest and recovery of the crime weapons, there would have been no difficulty for the Investigating Officer to find these crime weapons on 16th April, 1977. However, according to the Investigating Officer these crime weapons were not there on 16th April, 1977, as according to him, the appellants had absconded and that they came back on the next day and then they must have concealed the weapons in. their houses and that is why he was not able to find these weapons earlier on 16th April, 1977. We are not impressed with the evidence relating to recovery given by the Investigating Officer and on account of the doubt that has been created about the mashirs themselves, as observed earlier, we are in agreement with the learned Sessions Judge that in this case no reliance can be placed upon the recoveries not only of the crime empties but also of the crime weapons. There is an additional reason for rejecting the recoveries in the present case and that is that the appellants Arz Muhammad and Bashir had also been challaned and tried under the Arms Ordinance for being found in possession of unlicensed fire‑arms. The learned trial Court, on the basis of his finding of rejection of recoveries had acquitted the said two appellants in respect of the cases against them under the Arms Ordinance. No appeal has been filed admittedly by the State against the acquittal of these two accused in the Arms Ordinance cases.

5. The ocular testimony in this case is consistent on the point that first appellant Arz Muhammad had fired a shot from his country made pistol at Dilawar who fell down and then appellant Bashir, at very close range, while standing over deceased Dilawar fired from his country made pistol. The eye‑witnesses are also very clear on the point that both the shots hit deceased Dilawar at very close range. In this connection we would here examine the contention raised by Mr. Muhammad Hayat Junejo, learned counsel for the appellants, that this evidence just does not fit in with the medical evidence, as according to learned counsel, the medical evidence is clear on the point that only one shot was fired. We consider it necessary to reproduce here the evidence of the Medical Officer relating to the injuries found by him while performing the post‑mortem of the deceased. The evidence relating to injuries by P. W. 12 Dr. Allah Warayo is as follows : (1) A fire‑arm wound 1 in diameter on left side of chest closed to sternum 2 medial and in line with left nipple. (2) A pellet wound in diameter, above and slightly medial to Injury No. 1. (3) A pellet wound in diameter, above slightly lateral to injury No. 1. (4) A pellet wound in diameter, below Injury No.

1. Injuries Nos. 1 to 4 appeared to be the wounds of entrance. (5) A hard swelling in diameter, above injury No.

1. A pellet was secured from this injury on disection. This pellet seems to have been reflected after striking some rib. (6) Six pellet wounds each measuring to 1/3 in diameter on right side of back 1 to 2" apart from each other and 3 to 4" away from vertebral column. (7) Six pellet wounds each measuring to 1/3 in diameter on left side of back upper part 1/2" to '1" away from each other and 1 to 2" away from vertebral column. (8) A hard swelling in diameter on right side of back just above lumber region. One pellet secured on disection from this injury. Injuries Nos. 6 to 8 indicate exit wounds to Injuries Nos. 1 to 4." The Medical Officer in his evidence has stated that Injuries Nos. 1 to 4 appeared to be the wounds of entrance and Injuries Nos. 6, 7 and 8 were exit wounds in respect of Injuries Nos. 1 to

4. It is clear that injury No. 5 was not an entrance wound, as according to the Medical Officer this was caused on account of deflection of a pellet after striking some rib. In his cross‑examination, the Medical Officer stated that "most probably all these wounds were the result of one shot". The size of wound No. 1 is 1 in diameter and it has been described by the Medical Officer as a "fire‑arm wound", whereas the other wounds of entry have been described by the Medical Officer as "pellet wounds" and each one of them is only in diameter and all these pellet wounds (Injuries Nos. 2, 3 and 4) are very close to Injury No.

1. The ocular testimony, as observed earlier, is consistent on the point that both the shots had hit deceased Dilawar, and that both the shots had been fired from very close range. If both shots were fired from very close range, there should have been two fire‑arm wounds bigger than the wounds Nos. 2, 3 and

4. Injury No. I, which is a fire‑arm wound and 1 in diameter shows that this was the wound caused by one shot fired from one pistol. However, there is no other wound of that size close to 1 . If a second shot had been fired from a country‑made pistol of similar make and it had it the deceased from such close distance there would have been a larger wound than what is mentioned against Injuries Nos, 2, 3 and

4. This with the reply in the cross‑examination by the Medical officer that "most probably all these wounds were the result of one shot" show that apparently‑ only one shot had been fired at the deceased which hit him from close range. It was contended by Mr. Jalaluddin Baloch, learned counsel for the State, that the other pellet Injuries Nos. 2, 3 and 4 or any one or more‑ of these three injuries could have been caused from the pellets of the second shot fired by Bashir. However, as observed earlier, both the shots were fired at close range and both the shots according to ocular testimony bad hit the deceased. The other shot also should have caused a larger wound than the wounds shown against Injuries Nos. 2, 3 and

4. It was in the alternative contended that the second shot may have hit the deceased at the very spot where the first shot had entered the body of the deceased leaving no second wound. The contention on its face appears unbelievable. Further in view of the answer given in the cross‑examination by the Medical Officer, the State should have, if they wanted to, got the clarification, if clarification was possible, in re‑examination. However, this was not done. In view of this we are satisfied that on the basis of the medical report and the evidence given by the Medical Officer it is established that only one shot had hit the deceased. In the face of this position, there is a direct conflict between the medical evidence and the ocular testimony. The four witnesses have with clarity deposed that two shots were fired one each by appellant Arz Muhammad and appellant Bashir. If, however, it has been established through medical evidence that only one shot was fired, it reflects upon the veracity of the evidence given by the eye‑witnesses. The entire testi mony given by the eye‑witnesses relating to their witnessing the incident as mentioned by them has become subject to doubt.

6. Apart from the conflict between the medical evidence and the ocular testimony, it has further been noticed that there was4ladmitted enmity between the appellants and complainant party and this has been mentioned not only in the F. I. R. but it has also been admitted by the three related eye‑witnesses in their depositions before the trial Court. Apart from the admitted enmity the first three eye‑witnesses, namely, P. Ws. 1, 2 and 3, are closely related amongst themselves and also to the deceased. Two of the eye‑witnesses are sons of the deceased and the third eye‑witness is the cousin of the other two eye‑witnesses and also the son of the sister of deceased Dilawar. Great reliance was placed by the A trial Court on the testimony of P. W. 4 Ghulam Rasool who was described as an independent witness. Apart from conflict with the medical evidence the evidence of P. W. 4 Ghulam Rasool does not inspire confidence. He is a chance witness and his sudden appearance at the most crucial moment in the circumstances of this case, raises some doubt. He is with his cycle throughout but in the mashirnama of vardat no mention is made of the cycle. He has not given any plausible explanation for his chance meeting with the complainant party at the decisive time. There are then certain infirmities in his evidence and also portions thereof which are contradictory to the evidence of the related three eye‑witnesses.

7. There being a conflict between the medical evidence and the ocular testimony and on account of reason given in the previous paragraph coupled with the rejection of recoveries, we hold that case against the appellants has not been established. The appeal filed by the appellants is accordingly accepted and their conviction and sentences are set aside. Reference under section 374, Cr. P. C. is not accepted. Appeal allowed