1990 P Cr (PLP)

5. Bahadur Khan, S.I. (P.W.10) during his spot inspection, prepared the site plan, Exh.P.B., at the instance and pointation of the P.Ws. He also collected from the spot one empty of 7 m.m. rifle (P.1), freshly discharged, and one spent bullet (P.2) vide recovery memo Exh.P.C. The Investigating Officer also recovered from the spot a small size empty (P.3) and another empty of .30 bore (P.4) which were sealed by the Investigating Officer into a parcel vide recovery memo Exh.P.C./1. The Investigating Officer also collected blood stained earth (P.12) from the spot and sealed the same into parcel vide memo Exh.P.C./2. Another empty of a small size (P.5) alongwith a spent bullet (P.6) was also recovered by the 1.0. from the spot vide memo Exh.P.C./3. Vide another recovery memo Exh.P.C./4 the 1.0. took into possession one bulb of 60 volts (P.7) from the spot. He also recovered from the spot two empties of .303 bore (P.8) and took the same into possession vide recovery memo Exh.P.C./5. The I.O. was yet busy in the investigation of the case when Nazar Hussain (P.W.1) produced to the I.O. `Kamiz' (P,9), `Shalwar` (P.10) and a white `Banyan' (P.11), all blood‑stained, belonging to the deceased, who had brought these articles with him from the mortuary and handed over the same to the 1.0. who took into possession these articles vide memo Exh.P.C./6. The blood‑stained clothes and the blood recovered from the spot were also sent to the Forensic Science Laboratory for opinion and report, the result whereof is available on file as Exh.P.Z. The I.O also recorded the statements of the P.Ws. As the accused were avoiding their arrest, therefore, the I.O. obtained warrants under section 204, Cr.P.C., and proclamation notices under section 87, Cr.P.C., against the accused. After completion of the investigation, the I.O. handed over complete challan to the S.H.O. of the Police Station concerned.

6. Saadat Iqbal, Inspector, P.W.6, on completion of the investigation submitted complete challan against the accused in the Court. He also submitted supplementary challan against the accused‑respondent in this case after his arrest.

7. In order to prove its case against the accused‑respondent, the prosecution examined as many as 10 witnesses in the case including Noor Elahi, P.W.9, the alleged eye‑witness to the occurrence. Javed P.W., the real brother of the deceased had also allegedly witnessed the occurrence but he was not produced at the trial being unnecessary. The accused‑respondent when examined at the trial denied the charge and professed innocence.

8. The learned trial Judge vide his impugned judgment dated 2‑2‑1985 acquitted the accused‑respondent of the charge and hence the present State Appeal.

9. We have heard the learned counsel for the parties and have also gone through the evidence available on file.

10. In this case the prosecution has produced only one eye‑witness to the incident i.e. Noor Elahi, P.W.9, to prove the factum of committing the murder of Jan Said deceased by Wasal Khan, accused‑respondent, and his co‑accused, in spite of the fact that the real brother of the deceased had also witnessed the occurrence according to the lodger of the report, but the prosecution abandoned him as unnecessary and thus an adverse inference can be drawn against the prosecution that had Javed been produced at the trial he would not have supported the case of the prosecution. Admittedly, there was blood‑feud enmity between the parties and the solitary eye‑witness to the occurrence was thus inimical towards the accused‑respondent. In such like situation the duty of the Court is to search for independent corroboration of the incident which is, however, lacking in the case in hand. Besides this, re‑appraisal of the evidence available on file would be subject to the fact to be kept in mind that the accused respondent before us has a strong presumption of his innocence in his favour being acquitted by the trial Court of the charge.

11. The evidence of the alleged solitary eye‑witness of the occurrence is full of doubts as has been pointed out by the learned trial Judge in his judgment. B According to Noor Ilahi, P.W.9, the first volley of shots was fired from the main gate of the hujra. The bulb recovered from the venue of the spot which was allegedly on at the relevant time was not sufficient enough to throw light even upto the main gate of the hujra as is evident from the site‑plan, Exh.P.B. Hence, admittedly at the time of tiring by the assailants from the main gate of the Hujra, the persons present in the Hujra were not in a position to identify the culprits. At the same time the defence side has created sufficient doubt about the recovery of the alleged bulb from the spot. Noor Ilahi, P.W.9, in his statement at the trial has deposed to the following effect: "the first volley of shots was fired by the accused from the path in front of the gate. Again said from the main gate and then a second volley of shots was fired from a close range. When the first volley of shots was fired, I and Javed moved for a shelter. It is correct that towards the west of the Kotha where I and Javed P.W. were sitting there is an open space and also there is a door towards our house." From the above, it can be easily inferred that as and when the first volley of shots was fired from the main gate of the Hujra, both the persons i.e. P.W. Noor Ilahi and Javed moved for a shelter and the best place for shelter to them was their house the door of which opens towards the hujra, as is evident from the site‑plan. Otherwise, the accused would not have spared them unhurt. As not a single fire arm injury was received by the alleged eye‑witnesses, therefore, the conclusion would be that they took shelter in their house. Perusal of the site‑plan further reveals that the said door was nearer to the side of the complainant and Javed (not produced) where at the relevant time according to the eye‑witness he alongwith Javed P.W. was present in the Hujra. Hence, Noor Elahi, P.W.9, has C not at all seen the act of firing at the deceased from a close range.

12. In the First Information Report, Noor Ilahi, complainant, has not disclosed the fact that a first volley of shots was also fired from outside the hujra or the main gate and then the second volley of shots was fired from a close range. P.W.9 in his statement at the trial has also disclosed that:‑‑ "From the spot I rushed to Police Station, where I lodged the report ..........I had all alone gone to the police station on foot." However, he has been clearly belied by Hidayatullah, P.W.8, marginal witness to the recovery memos, who has stated in his statement at the trial as under:‑‑ At that time nobody had gone for lodging the report. The Investigating Officer reached the village at about 11 p.m The Investigating Office then recorded the first information report in the Hujra of Jan Said, deceased, which was made by Noor Elahi, son of Fazal Ilhi, who is uncle of the deceased Jan Said. Keeping into consideration the above deposition it can be stated with certainty that the First Information Report was lodged after preliminary investigation. This fact further gets support from the fact that some of the documents prepared p by the Investigating Officer during his spot inspection do not have number of the F.I.R. In these circumstances, the story of recording the F.I.R. at the Police Station seems to have been introduced only to strengthen case against the accused‑respondent. Besides this, the I.O. has also recovered empties of .30 bore r from the spot whereas the case of the prosecution is that all the accused were having topaks with them at the relevant time. This aspect of the case also casts doubt over the case of the prosecution

13. After having carefully gone through the evidence available on record, we are of the view that the learned trial Judge has properly appreciated the evidence available on record and has not committed any illegality while recording acquittal of the accused‑respondent. The findings of the learned trial Judge are neither perverse nor capricious and hence the State appeal, being without any force, deserves dismissal and we order accordingly. The accused‑respondent is present in Court on bail and he is discharged from the obligation of his bail bond and is allowed to go. This judgment would be having no bearing on the case of the absconders as and when arrested and tried by a competent Court of law. N.H.Q./1089/P Appeal dismissed.