1994 PLP 1066 (SCMR)

SAJJAD ALI SHAH, J: ‑‑Both appellants in Criminal Appeal No. 87/92 named above stand convicted by the trial Court for offence under section 302/34, P.P.C. and sentenced to death and fine of Rs.20,000 each or in default simple imprisonment for 5 years. Peshawar High Court dismissed their appeal and confirmed their death sentences. Revision petition filed by the complainant for award of compensation in addition to fine was also dismissed. Three petitions were filed for leave to appeal in this Court as described above in the title from which leave is granted in Criminal Petition No. 11/92 converting it into Criminal Appeal No. 87/92 with direction that the remaining two petitions are to be heard alongwith appeal. It would be pertinent to mention that by Criminal Petition No. 15‑P/92 Arshad has challenged his conviction under section 13 of the Arms Ordinance, 1965 and sentence of R.I for one year and fine of Rs.1,000 or in default S.I. for one month. Leave is granted to consider whether positive report of Fire‑arm Expert lends requisite corroboration to the ocular evidence of, two ‑inimical eye‑witnesses in the circumstances that Roohul Amin H.C., who kept pistols for one day was not produced, lead bullet recovered from the dead body was not sent to the Laboratory and empties recovered from the spot and sealed into two parcels were received in the Laboratory in one parcel.

2. Briefly stated that relevant facts in the background are that incident took place on 13‑1‑1989 at 7‑00 p.m. at the door of mosque of Faqirabad in District Peshawar when deceased Pir Muhammad and his two brothers Naimtullah and Hidayatullah walked in to offer Isha prayers. Both appellants armed with pistols were waiting and fired at Pir Muhammad after he entered the mosque, who became injured and fell down. Appellants were identified in the electric light and after firing decamped from the place of occurrence. Complainant Naimatullah carried his injured brother in Suzuki van, who died on the way and then carried the dead body to P.S. Faqirabad, where F.I.R. was lodged same night at 7‑20 p.m. In F.I.R. names of both appellants are mentioned as assailants‑who fired at Pir Muhammad with pistols and motive is described as blood‑feud between the parties but without details. S.I. Muhammad Nazis: of P.S. Faqirabad took in hand investigation of the case and went to the spot after sending the dead body to mortuary. From the spot, he recovered blood‑stained earth, one spent bullet, six empty cartridges of .32 bore and two empty cartridges of .30 bore, three tube‑lights and one mercury bulb.

3. On the same night of incident at 7‑30 p.m. S.H.O. Ghulam Sarwar of P.S. Daudzai apprehended appellants and recovered from Khairullah .32 bore pistol with licence and from Arshad .30 bore pistol without licence and also pistols smelt fresh firing. During interrogation contact was established with P.S. Faqirabad and it was learnt that against the appellants murder case was registered at that police station. In such circumstances custody of appellants and weapons was taken over by S.H.O. of P.S. Faqirabad. A separate case was registered under section 13 of the Arms Ordinance, 1965, against appellant Arshad, who did not have licence for .30 bore pistol recovered from his possession. After completion of necessary steps both cases were challaned in the trial Court.

4. During trial proceedings prosecution examined il witnesses in support of its case. P.W.1 is Dr. Zakirullah, who conducted post‑mortem examination of the dead body. P.W.2 is Nazir s/o Yar Jan, in whose presence, blood‑stained earth, one bullet, 6 empties .32 bore and 2 empties .30 bore were recovered from the spot vide Memos PC/2 and PC/3. P.W.3 is Mirzaman LHC of P.S. Daudzai, who witnessed recovery of pistols from appellants vide Memo Ex.PC/4. P.W.4 is Ijaz Haidri MHC of P.S. Faqirabad, who attested Exh. PC/5 memo of recovery of clothes of deceased and three bullets sent by the Doctor and taken possession of by I.O. P.W.5 is PC Firdous, corpse‑bearer, who brought parcels containing clothes of deceased and three bullets. P.W.6 and 7 are Naimatullah complainant and Hidayatullah, who are eye‑witnesses of the incident. They have also testified about further details of the motive to the effect that their brother Nasrullah was charged for murder of Firdous brother of appellant Khairullah but absconded. Secondly prior to the incident in this case, appellant Khairullah fired at P.W. Hidayatullah, who became injured and in that case Khairullah was convicted and sentenced to R.I. for two years. P.W. is S.I. Saddat Mehdi, who presented challan in the Court. P.W.9 is A.S.I. Muhammad Iqbal of P.S. Faqirabad, who accompanied 1.0. to P.S. Daudzai and is marginal witness of Memo Exh. PD pertaining to the recovery of pistols. P.W.10 is S.I. Ghulam Sarwar. of P.S. Daudzai, who apprehended both appellants and recovered pistols from them. He also made entries in daily diary. P.W. 11 is S.I. Muhammad Nazir of P.S. Faqirabad, who has investigated this case.

5. Appellants in the trial Court in their statements under section 342 Cr.P.C. admitted their relationship inter se to the effect that Khairullah is uncle and Arshad is nephew. It is also admitted that Nasrullah brother of deceased had murdered Firdous brother of Khairullah and absconded. Assertion is made that on that account appellants have been falsely implicated in this murder case to bring pressure for compromise. Khairullah also stated that he had been convicted for causing injuries to Hidayatullah on the basis of collaboration between local police and complainant party in this case. Further in this case prosecution allegations are denied. Plea is taken that they were arrested from their house at Mira Khel in Village Charsada and brought to P.S. Daudzai. Khairullah has admitted having produced licensed pistol on account of pressure of police and Arshad denied recovery of pistol from him. Both appellants have proclaimed innocence and false implication in this case due to motive stated by them. They declined to produce any witness in defence.

6. We have heard in detail Mr. S.M. Zafar learned counsel for the appellants, Mr. M. Jamil for the State and Mr. Zahoorul Haq for the complainant. Perusal of leave granting order shows that scope therein is limited to the scrutiny of positive report of Fire Arms Expert to the effect whether it lends sufficient corroboration to the ocular evidence of two inimical eye‑witnesses in the light of defects end infirmities pointed out end mentioned specifically in the leave granting order. In this context report of Fire Arms Expert (at page 51 of the paper book) shows that from Parcel No.3 were recovered 6 crime empties (7.65 MM) marked C1 to C6, 2 crime empties .30 bore marked C7 and C8 and one crime bullet marked `B'. Report is positive that crime empties C1 to C6 were fired from pistol No.169108 recovered from Khairullah and two crime empties C7 and C8 were fired from pistol No. 13621 recovered from Arshad. Additionally, finding is that crime bullet was also fired from pistol of Arshad.

7. Going back to the investigation, it appears that after registration of F.I.R., 1.0. went to the place of occurrence and prepared Exh.PC (page 56 of paper book) which shows that blood‑stained earth and one crime bullet P‑8 were recovered from the spot which was put into separate sealed parcels at the spot. Another recovery memo Exh.PC/2 (at page 57 of paper book) shows that 6 crime empties of .32 bore marked P1 and two crime empties of .30 bore marked P2 were recovered and put into a sealed parcel at the spot. Third memo Exh.PC/3 (page 58 of paper book) shows that three electric tube‑lights and one mercury bulb were recovered from the mosque and put into sealed parcel.

8. From two witnesses, who attested recovery memos mentioned above, P.W.2 Nazir son of Yar Jan was examined by the prosecution in the trial Court and perusal of the evidence (page 62 of paper book) shows that blood‑stained earth and crime bullet recovered vide Exh.PC were put into one sealed parcel while other crime empties 6 plus 2 recovered vide memo Exh.PC/2 were put into separate sealed parcel. As against that in the Laboratory of Fire Arms Expert, 8 crime empties and one crime bullet were taken out from one sealed parcel. In examination‑in‑chief, P.W.2 Nazir son of Yar Jan stuck to his original stand that crime bullet was put into separate sealed parcel alongwith blood‑stained earth and in the cross‑examination he has disclosed that in his presence at the spot parcels were not sealed and all articles were taken away by 1.0. with himself, Strangely enough no steps were taken over by counsel incharge of prosecution or by learned Judge of the trial Court to have this witness declared hostile neither any attempt was made to have from him further clarification in re‑examination. Not only that but the other recovery witness Nadir Khan son of Abdul Qayum was given up vide statement of APP dated 3‑4‑1990 (at page 63 of paper book).

10. In the context mentioned above, perusal of evidence of P.W.11 Muhammad Nazir (page 80 of paper book) shows that in the examination‑in‑chief he has supported contents of recovery memos Exhs. PC and PC/2 but in cross‑examination stated that spent bullet was packed into a separate sealed parcel. He also stated that all empties of .32 bore as well as .30 bore were packed in a sealed parcel vide memo Exh.YC/2. In an attempt to clarify the inconsistency this witness stated further in cross‑examination as under (at page 84 of paper book):‑ "In fact I had packed and sealed the spent bullet recovered from the spot in a separate parcel but due to some mistake in my application Exh. PY, it has been wrongly mentioned that the spent bullet was sealed in one parcel besides the empty cases recovered from the spot i.e. in Parcel No.3."

10. In the cross‑examination S.I. Muhammad Nazir went on further and stated that after recovery of crime weapons, he sent three parcels to the Laboratory and in the first two parcels were pistols and in the third parcel were crime empties and the bullet. He has not said that in third parcel he had put two sealed parcels already made at the spot, one containing earth and bullet and the other containing 8 crime empties. The report of Fire Arms Expert also does not mention that in the third sealed parcel there were two sealed parcels.

11. From what is stated above, it is clear that the mystry as to how crime bullet which was put into a separate sealed parcel appeared in one parcel No.3 alongwith other crime empties when it was opened in the laboratory of Fire Arms Expert, could have been cleared by P.W.2 Nazir recovery witness and P.W.11 Muhammad Nazir, if further pertinent and pointed questions in this regard had been put to them when they were in the witness box. Firs Arms Expert could have also rendered useful assistance in clarifying the mystery had he been examined in the trial Court, which was not done. Whether spent bullet was sealed and how, is important for the reason that according to the report of Fire Arms Expert, it has been found to have matched with pistol of Arshad.

12. Second point worth mentioning is that P.W.1 Dr. Zakirullah, who conducted post‑mortem examination; deposed before the trial Court that he took out three bullets from the dead body and handed them over in a phial to the police. P.W.5 Firdous Constable stated before the trial Court that he brought clothes of deceased and a phial containing three bullets from the hospital which he handed over to the Investigating Officer. P.W.11 S.I. Muhammad Nazir admitted in his deposition before the trial Court that after post‑mortem examination he received clothes of deceased and a phial containing three bullets which were recovered from the dead body vide Memo Exh.PC/5 (at page 60 of paper book). These three bullets recovered from the dead body were not sent to the Ballistic Expert because they do not find any mention in the report which is on the record. First Arms Expert could have given finding as to from which pistol those bullets were fired. This is another missing link for which prosecution has given no explanation. I.O. has not stated in his evidence that he did not send these bullets recovered from the dead body for the reason that it was not necessary to do so. Some explanation must come on the record to satisfy the mind of the Court as to what happened to these three bullets extracted from the dead body and why they were not sent to the Fire Arms Expert.

13. Another aspect of this case requiring deeper consideration is arrest of both appellants and recovery of pistols from them on the same day near police station Daudzai. In this connection P.W.10 S.I. Ghulam Sarwar SHO Daudzai deposed before the trial Court that on the day of incident i.e. 13‑1‑1989 he apprehended both appellants and recovered .32 bore pistol from Khairullah which was licensed and 30 bore pistol from Arshad which was not licensed, He filed case under section 13 of the Arms Act against Arshad. He prepared such Memo Exh.PC/4 (page 59 of paper book). He made entry in daily diary. He found both appellants travelling in a Suzuki van and had pistols in their pockets. He asked all passengers in the van to get down and checked them one by one. Pistols recovered smelt fresh firing. He arrested both appellants under section 54, Cr.P.C. and then made enquiry from P.S. Faqirabad and learnt that case was filed against appellants for offence under section 302, P.P.C. He handed over the appellants and their weapons to the police of P.S. Faqirabad.

14. Perusal of Exh.PD on the record (at page 62 of paper book) shows that the same was prepared by S.I. Faqirabad on 14‑1‑1989, whereby two pistols were taken in custody and put into sealed parcels in presence of witnesses Muhammad Iqbal, A.S.I. of P.S. Faqirabad and Roohul Amin, M.H.C. of P.S. Daudzai. P.W.11 S.I. Muhammad Nazir of P.S. Faqirabad deposed before the trial Court that he went to P.S. Daudzai, interrogated appellants and asked for their arms, for which Muharrir told him that this would be handed over to him only in presence of S.H.O. of P.S. Daudzai. He waited and on the next day he took into possession the pistols and other extra ammunition vide Exh.PD and then sealed the pistols into parcels. Now the question arises as to where were the pistols after recovery from appellants till they were handed over to S.H.O. of P.S. Faqirabad, who recovered the same and put them into sealed parcels on the following day: It is deposed by P.W.10 Ghulam Sarwar S.I. of P.S. Daudzai in his cross‑examination (at page 79 of paper book) that pistols recovered by him from appellants were handed over to the police of P.S. Faqirabad by the Muharrir of P.S. Daudzai. It appears from the record that Muharrir at P.S. Daudzai at the relevant time was Roohul Amin. In such circumstances Roohul Amin happens to be very important witness, who can state the correct factual position as to what happened to the pistols recovered from the appellants till they were handed over to S.H.O. of P.S. Faqirabad, which was on the following day of recovery when there are indications in the evidence produced by the prosecution that the pistols remained in the custody of Roohul Amin.

15. For the facts and reasons stated above, I am of the view. that in this case both appellants are sentenced to death and strong need is felt for corroboration to the ocular evidence of two inimical eye‑witnesses. That corroboration is available on the record in the shape of evidence with regard to the recovery of crime empties from the spot and crime weapons from the appellants with positive finding of the Fire Arms Expert but that evidence suffers from inherent defects and setbacks as stated above. Confusion arising from setbacks mentioned above could have been put at rest by clarifications from the concerned witnesses if the learned Judge of the trial Court and APP Incharge of prosecution case had been alert and careful in the conduct of this case. Firstly; P.W. 2 Nazir recovery witness (page 62 of paper book) can be recalled and examined further for clarifications whether spent bullet was put into sealed parcel alongwith blood‑stained earth or was sealed alongwith crime empties m one parcel and alternatively with regard to the assertion that sealed parcels were not made by I.O at the spot. If he does not support prosecution case, steps can be taken as are provided under the law. Secondly, P.W.11 Muhammad Nazir S. I. of P. S. Faqirabad can be recalled and examined further in accordance with law for clarifications in respect of memos Exhs. PC and PC/2 and also in respect of three bullets extracted from dead body and not sent to Fire Arms Expert and about recovery and sealing of pistols for the purpose of, sending them to the Fire‑Arms Expert. Thirdly, in this case Fire Arms Expert should be examined and he can clarify whether spent bullet recovered from Parcel No. 3 was in a separate sealed parcel or was not sealed and mixed up with other crime empties. Fourthly, it is essential to examine Roohul Amin, M. H. C. of P. S. Daudzai. I, therefore, set aside judgments of the trial Court and High Court and remand the case to the trial Court for examination of witnesses mentioned above. After the examination of those witnesses, statements under section 342, Cr. P.C be recast and opportunity be given for production of defence and then after hearing the arguments of both sides, fresh decision be given strictly according to law. The trial Court is directed to decide this case within three months. N.H.Q./K‑242/S Case remanded