1974 P Cr (PLP)

5. The Investigating Officer came to the Chauk of Mitha Tiwana and after drawing up the necessary documents sent the dead body for post‑mortem examination. He also recorded the statement of Muhammad Yar P. W. at the place. He spent the night at village Dhokri and reached the place of occurrence next morning at 8‑15 a. m. He took possession of the blood‑stained earth from the place of occurrence. He also found crime empty Exh P. 5 and scaled both these articles into separate parcels. These parcels were sent to the police station for safe custody to the malkhana on 22nd September 1968.

6. The appellant was produced before the A. S. I. on 24th of Septem ber 1968, at 4 p. m. by Naib Subedar Ahmad Khan along with the rifle P.

6. The A. S. I. arrested the appellant and sealed the rifle into a parcel. The empties and the rifle were sent to the Ballistics Expert on 27th of September 1968 and 3rd of October 1968, respectively. Mufti Munirf Examiner of firearms (P. W. 6) found that the empty recovered from the spot was wedded to the rifle recovered from, the appellant at the time of his arrest.

7. The appellant is the khalazad of the deceased. 13e had abducted one Mst. Fateh Khatun (P. W. 9) wife of Allah Yar and had kept her in the house of the deceased. The woman informed the mother of the deceased that she had been abducted by the appellant. On this the deceased, a few days before the occurrence, returned the woman to her husband. This, according to the prosecution, is the motive for the commission of the offence.

8. The learned Sessions Judge in convicting the appellant relied on .the ocular testimony as well as on the evidence of recovery. We note that Khan Muhammad who is said to have accompanied the deceased to the outskirts of the village where the occurrence took, place is a cousin of Mst. Fateh Khatoon (P. W. 9) who had been enticed by the appellant. We have seen above that the appellant is a khalazad of he deceased. The purpose for which the deceased visited the house of this Khan Muhammad is not discoverable from the evidence. It is however, admitted that the deceased was resid ing at Rasoolabad. The statement of Khan Muhammad that the deceased wanted to go to Dhok Wargal to see the condition of his house after fifteen years does trot sound to be very reassuring.

9. In the F. I. R. Khan Muhammad had stated that the appellant was standing on the other bank of the band wherefrom he fired and hit the deceased on the left side of his shoulder. At the trial however, he said that the appellant fired while tie was sitting. He also changed the location and the direction of the fire by saying that the fire had been shot from the right side. This statement was perhaps made in order to bring the ocular testimony in accord with the medical evidence according to which it had been found that the wound of entry was on the right side of the shoulder and there were two wounds of exit on the left. We also find from the medical evidence that spinal cord was crushed on the level of sixth and seventh vertebrae. Fourth, and sixth ribs on both the sides were crushed. The right and left lungs were crushed at two places on the back. The doctor said that rigor mortis was absent from both upper lower limbs that and time between death and post‑mortem was within thirty‑two hours.

10. The appellant took the stand at the trial that the deceased was his khalazad and he had no animus to kill him. He further said that Khan Muhammad being very closely related to the abducted woman, had done the deceased to death and involved the appellant falsely in this case.

11. We have seen above that there was no discoverable reason for the deceased to have visited the house of Khan Muhammad P. W. The other two witnesses namely, Muhammad Yar and Sultan are closely related inter se the former being the maternal uncle of the latter. Muhammad Yar actually lives at Dhok Beri Chahri which is at a distance of three miles from Dhok Pirha where Sultan Muhammad P. W. resides. Muhammad Yar had gone to Dhok Pihra to cut suitable wood for having a plough made for him. Sultan Muhammad, his sister's son, was with him as he had to go to Dhok Pirha to have a phala and some sickles sharpened by a blacksmith. While they were on their way to Dhok Pirha, they saw the occurrence. Muhammad Yar claimed that he and Sultan were among the persons who carried the cot of the deceased to Mitha Tiwana.

12. There are certain aspects of the case to which the learned Session Judge had not adverted. The first is the colossal delay in lodging the F. I. R. Admittedly, the deceased had breathed his last at a distance of three to four miles from the place of occurrence. There were two courses open to the attendants. They should have either brought back the dead body to the village which perhaps would have been the more natural course, or carried it straight to the police station. Mr. D. M. Awan rightly contended that this story of putting the dead body on the mouth of Mitha Tiwana was invent ed to explain away the delay in lodging the F. I. R. We also find that the Investigating Officer stayed for the night in some other village and visited the spot on the third day of the occurrence. The delay in lodging the F. I. R., therefore, remains unexplained.

13. The learned counsel also argued that such an extensive damage to the ribs and vertebra could not have been caused by the single firearm injury found on the dead body. He also referred us to the Medical Juris prudence by Moodi (Eleventh Edition), page 145 where it is said that in northern India the usual duration of rigor mortis is twenty‑four to forty- eight hours in winter and eighteen to thirty‑six hours in summer. He, there fore, argued that it being the month of September and the place where the occurrence took place being hilly, the death must have taken place earlier than the time alleged by the prosecution. Since the doctor was not ques tioned about both these matters, it is not possible for us to say anything precisely about these contentions. We, however, find that there is some material on the record to lend support to the contention of the learned counsel that the death had perhaps taken place earlier than the time alleged by the prosecution. It appears from the evidence of F. C. Sabir Ali (P. W. 3) that the police had known the fact of this murder much earlier than the first informant would have us believe. According to this witness he left the police station at about 7 or 8 in the morning along with the Investigating Officer. The time of the occurrence as given in the F. I. R., therefore, does not appear to be correct.

14. The number of F. I. R. is not quoted in the inquest report. The name of Sultan Muhammad P. W. does not find mention in it at all while Muhammad Yar is mentioned as one of the persons present with the dead body. None of them however has been mentioned in the inquest report as an eye‑witness. We find some substance in the argument advanced by the learned counsel that the inquest report was perhaps drawn up earlier than the F. I. R. was written and Sultan and Muhammad Yar were later on introduced as eye‑witnesses.

15. We have found above that the deceased had no reason to come to Khan Muhammad (P. W. 10) and it is extremely doubtful if he is a witness of the occurrence. The manner in which the occurrence took place was stated by him differently in the F. I. R. and at the trial. He is a cousin of the woman who was abducted by the appellant. The entire investigation of the case becomes doubtful because of the unexplained delay in lodging the F. I. R. There is no corroborative evidence to connect the appellant with the commission of the offence. We, therefore, find that the offence of culpable homicide amounting to murder has not beep brought home to him.

16. The appeal against the conviction and sentence of the appellant under the Arms Act is a matter which should gave been ordinarily dealt with by a Single Bench, but since we have heard arguments on the point of recovery, we would like to dispose of this appeal also. We find that best evidence was not produced by the prosecution in respect of the recovery also. The story of the prosecution is that Naib Subedar Ahmad Khan had produced the appellant at his Dera along with the rifle. He has not been pro duced at the trial. Oat of the two witnesses of the recovery which bear the same name i.e. Ata Muhammad (P. Ws. 7 and 8), Ata Muhammad son of Razi Khan is related to Khan Muhammad P. W. and as such he cannot said to be an independent witness. He actually lives at village Dhok Pirh which is at a distance of 6/7 miles from village Dhokri. The other witness of recovery Ata Muhammad son of Ali Muhammad is said to have joined the police party voluntarily. He admitted that the land of Khan Muhammad deceased was mortgaged with him with possession. He resides at Dhok Mahmood which is at some distance from the place of occurrence. It was admitted by him that there were three Lambardars and two B. D. Members in village Dhokri but none of them was associated with the recovery. We, therefore, do not find the evidence of recovery as satisfactory and reject the same.

17. The result is that we allow both the appeals and direct that the appellant shall be set at liberty unless he is required to be lawfully detained in some other case. The sentence of death is not confirmed. Appeal allowed.