1980 P Cr (PLP)

3. Occurrence, allegedly, took place on Ist August, 1973 at 6.30 a.m, in the area of Chak No. 5/8, A. R., seven miles from Police Station, Tulamba. Matter was reported to the police by Ghulam Muhammad P. W. at 8‑30 a.m. same day ; F

1. R. (Exh. PA) was prepared by Allah Dad Khan. A. S. I. (P. W. II).

4. Facts of the prosecution case, stated briefly, are that two years prior to this occurrence, Khushi Muhammad, brother of appellant Shah Muhammad was murdered. Bagh Ali deceased, Sher Ali (not examined) and two others, were challaned. This was the motive force for this crime. Accused in that case were on bail and on the day of occurrence, inter alia, were going to appear in pre‑trial proceedings at Khanewal. The accused party was in ambush in the area of Chak No. 5,18, A. R. Suba appellant armed with a 12 bore gun, remaining appellants and Shaukat son of Shah Muhammad (not challaned) armed with hatchets. Appellant Shah Muhammad shouted that no one should be spared alive and simul taneously appellant Suba fired his gun and the pellets hit on the left cheek of Ghulam Muhammad P. W. At this Ghulam Muhammad P. W. and his son Sher Ali stopped back while Bagh Ali deceased began running on the road in front. Appellant Suba fired a shot again hitting the deceased on the right arm. Assailants who were in chase, overtook him when he was rising a Khal. Shah Muhammad appellant was shouting that he (the deceased) being leader of his party, should not be left alive. Appellant Abdul Rehman gave him a hatchet blow on the head while Shaukat gave him a hatchet blow on the right arm. Deceased staggered a bit, but continued running forward. :? t some distance all the assailants showered hatchet blows on him. Shaukat gave him a blow on the neck, Suba gave a blow on the head with the butt of the gun. Bagh Ali succumbed to the injuries at the spot. Hue and cry raised by the com plainant and his son, attracted, inter alia, Wazeer Ahmad P. W. 10 to the spot who witnessed the occurrence. Assailants removed the clothes of the deceased and escaped away with their respective weapons. Allah Dad Khan, A. S. I. after registering the case proceeded to the spot and r.‑ached there at about 10‑00 a.m. He found the dead body of deceased Bagh Ali lying there. He held inquest, drew up report Exh. PL and prepared injury statement Exh. PL/l. He had earlier, at the Police Station prepared injury statement (Exh. PM) of Ghulam Muhammad P. W. From the spot he took into possession blood‑stained, earth ; crime empty P. 7 and broken butt of a gun. He made the former two into sealed parcels vide memos. Exh. PH and Exh. PJ, respectively. Latter was secured vide memo Exh. PB. Dead body of Bagh Ali was despatched to the mortuary for post‑mortem examination. Site plans Exh. PG and Exh. PG/ I were got prepared by Abdul Hakeem Patwari. He arrested the appellants‑Shah Muhammad on 5th August, 1973, Muhammad Tufail on 8th August, 1973, Abdul Rehman on 10th August, 1973 and Suba on 16th August, 1973. Appellant Suba, while in police custody, led to the recovery of gun P. 5 from his residential Kotha on 16th August, 1973. This was made into a sealed parcel and taken into possession vide memo. Exh. PE. Abdul Rehman appellant on the same day led to the recovery of blood‑stained hatchet P. 6 which was taken into possession and sealed into a parcel vide memo. Exh. PF.

6. Dr. Abdul Rashid P. W. 1, conducted post‑mortem examination on the dead body of the deceased. He was found to have suffered seven injuries (fully described in the judgment of the learned trial Judge)‑‑‑‑one by a fire‑arm and the rest `cuts' with a sharp‑edged weapon. Scalp and skull were completely cut below injury Nos. 1 and

2. The trachea (wind pipe) was completely cut by injury No.

3. Death, in his opinion, occurred due to shock and bleeding on account of injury No. 3 which cut trachea and blood vessels of neck. Injury Nos. 1 and 2 were individually sufficient to cause death. Probable time between injuries and death was immediate and between death and post mortem 24 to 48 hours.

7. Ghulam Muhammad P. W. was examined medically by Dr. 2afrul Haq (P. W. 2) on 2nd August, 1973. He was found to have suffered two injuries‑a contused wound on the lower upper part of left cheek and an abrasion on the front upper part of left shoulder. Injury No. 1 was caused by fire‑arm while injury No. 2 with a blunt weapon. Both the injuries were simple in nature.

8. Appellants, at the trial have pleaded not guilty and professed their innocence. They have however, admitted their relationship inter se. They have taken up position that they have been involved in the case due to their enmity with the P. Ws. The involvement of, inter aria, the deceased in the murder case of Khushi Muhammad, however, is not disputed.

9. Prosecution at the trial has‑ relied on the ocular evidence given by Ghulam Muhammad (P. W. 9) and Wazir Ahmad (P. W. 10) ; the motive ; the recoveries and the medical evidence.

10. Learned trial Judge has accepted the prosecution case in its entirety. He has, however, not recorded any reason in awarding lesser of the two sentences under section 302, P. P. C.

11. I have heard the learned counsel for the parties and have gone through the record of the case carefully with their assistance.

12. Learned. counsel for the appellants has raised two‑fold con tentions. 1n the first place, it is argued that the prosecution has failed to establish its case against any of the appellants beyond doubt and therefore. their conviction cannot be sustained. He then pointing to a number of circumstances, which 1 intend to take note of in the sequel, argued that ocular evidence in the case is not of the quality where conviction of the appellants can be upheld without strong supporting evidence against each of the appellants. According to him no such corroboration is available. Incriminating recoveries, for reasons elaborated by him; cannot be believed. He referred to Manzoor alias Mujan v. The State (P L D 1979 Kar.276). Medical evidence is in conflict with the ocular evidence and hardly provides any corroboration. Motive even though not disputed, by itself is not sufficient corroboration.

13. Learned State Counsel, on the other hand, argued that prosecu tion has been able to establish its case against all the appellants beyond doubt and no exception can be taken to their conviction at the trial. !According to him general rule of caution is not applicable in this case and reliance can well be placed on the ocular evidence unreservedly. Wazir Ahmad P. W. is an independent witness. Ghulam Muhammad P. W. was injured in the occurrence and his presence can hardly be doubted. In any case, incriminating recoveries in the case provide required corroboration, at least, against appellants Suba and Abdur Rehman.

14. Second contention raised by the learned counsel for the appellant must prevail. Prosecution has examined only two witnesses namely Ghulam Muhammad and Wazir Ahmad P. Ws. to give the ocular version of the occurrence. Ghulam Muhammad P. W. is also the author of the F.

1. R. In the F. I. R. he has, inter alia implicated Shaukat son of appellant Shah Muhammad. He had been assigned a definite role in that he is said to have given a hatchet blow on the arm of the deceased. He has omitted his name in his deposition at the trial. He made material improvements at the trial. Before the Committing Magistrate, he stated that the accused had muffled up their faces but at the trial he took up the position that he had so stated under the threat of the accused. He denied to have stated before the Committing Magistrate that the F. I. R. was lodged after con sultation, and that he had thumb‑marked the document after preliminary investigation. Before the Committing Magistrate, he had admitted that they had respected Ramzan and others for this murder but at the trial denied to have so stated. Wazir Ahmad P. W. similarly, made improve ments over his police statement in regard to the involvement of Shaukat. In his statement Exh. D A in fact, he attributed a specific hatchet blow to Shaukat. He was, moreover, not examined before the Committing Magis trate and appears to be a chance witness. These contradictions may not be sufficient for outright rejection of the prosecution case and there may be some explanation‑possibility of a compromise between the parties at the commitment stage and so on‑yet these are, evidently, enough to put the Court on guard. It is therefore, a case where one should look for strong independent corroboration against each of the appellants for sustaining conviction.

15. This brings me to the other items of the evidence. Before how ever, taking up this aspect of the case, I may at this stage, advert to the inter se relationship of the appellants. Appellant Abdur Rahman is the maternal cousin of appellant Shah Muhammad while appellant Suba is son‑in‑law of Shah Muhammad. Appellant Muhammad Tufail, statedly, is from their brotherhood.

16. Motive for this crime is the murder of Khushi Muhammad, brother of Shah Muhammad appellant and the same is not in dispute. Except Muhammad Tufail, therefore, rest of the appellants had motive to commit this crime. Motive alone however, does not provide the required corroboration. It is a double‑edged ‑ weapon and not sine qua non for bringing home the guilt to the accused.

17. Medical evidence in the ease, I am afraid, does not provide the required corroboration, As already noticed, according to the prosecution one of the injuries to the deceased is attributed to Shaukat who was not even challaned in the case. He was found innocent during the investiga tion. Besides, fire‑arm injuries, deceased had suffered five incised wounds two cuts on the skull, a cut on the front of the neck, a cut on the back of right arm and back of right fore‑arm and two cuts on the left side of neck. According to the prosecution case, all except Suba were armed with hatchets. The incised wounds, therefore, besides Shaukat, are attributed to three persons. These injuries may well to be caused by three, two persons or even one. The medical evidence, therefore, cannot be used as a corroborative piece of evidence to the ocular testimony.

18. The only item of evidence left in the case is the recovery of in criminating articles. As already noticed, the crime empty P. 7 and broken Butt P. I of a gun were recovered from the spot. Gun P. 5 has been recovered from appellant Suba and blood‑stained hatchet P. 6 from Abdur Rahman appellant. Gun P. 5 was found wedded with the crime empty recovered from the spot. Besides the Investigating Officer, Nazir Ahmad and Sher Ali are the attesting witnesses of these recoveries. Both were given up at the trial as having been won over. The point to be seen there fore, is if these recoveries can be accepted on the solitary statement of the Investigating Officer. The Supreme Court in the case of Muhammad Ahmad v. The State (P L D 1970 S c 261) has taken the view that there is nothing wrong to rely on the statement of the Investigating Officer if the other witnesses of recovery had to be given up as having been won over. In so far as the factum of these recoveries is concerned, in view of the rule laid down by the Supreme Court, there is no difficulty in accepting the same. Learned counsel for the appellant tiled to argue that as column No. 3 of the inquest report was left blank, it cannot be said with certainty that crime empty was found lying at the spot. Moreover, the Ballistic Expert in his report (Exh. P T) that crime empty P. 7 was found wedded with gun P. 5 recovered from appellant Suba has not given reasons for it. He argued that the defect is fatal and is not curable. Section 510, Cr. P. C. is a provision of convenience and it does not relieve the prosecution of its duty to support the opinion of the Ballistic Expert by reasons for such opinion. In cases where the opinion does not contain reasons, prosecution is required to produce the Expert for cross‑examination. Reference was made to Karachi case (supra). I feel I am not required to go into this aspect of the case. Besides crime empty, a .broken butt of the gun was recovered from the spot. There fore, even if the report of the Ballistic Expert is ignored the gun can be identified from its broken butt. I am, therefore, inclined to hold that the recovery of gun at the instance of appellant Suba is fully established. There is no such difficulty in accepting the recovery of blood‑stained hatchet from appellant Abdur Rahman. Resultantly the required corrobo ration is available against appellants Abdur Rahman and Suba. Their appeal therefore, has no merit and is dismissed accordingly. Their convic tion and sentences are maintained. Appeal of the remaining two appellants i.e. Shah Muhammad and Muhammad Tufail, therefore, succeeds. Their conviction and sentences arc set aside and they are acquitted. They shall be released forthwith if not required to be detained in connection with any other case. Order accordingly.