1976 P Cr (PLP)

After registering the case at the police station Iqbal Baig. Sub‑Inspector (P. W. 12) who was then S. H. O., P. S. Sadar, Kasur, visited the spot in village Nandka Takia on the same day. He prepared injury statement (Exh. P. H. 1) and inquest report (Exh. P. H.) of the deceased and despatched the dead body for autopsy. He secured blood‑stained earth from the spot vide memo. Exh. P. D. He arrested the appellant from his house on the same day at 10 p.m. He got removed blood‑stained shirt (Exh. P.1) and blood‑stained chaddar (Exit. P. 2) from the person of the appellant and secured it vide memo. Exh, P.A. On 14‑2‑1979, the appellant led him to the recovery of blood‑stained toka (Exh. P. 3) from his residential house which was secured vide memo. Exh. P. W. Ghulam Nabi, F. C. produced last worn clothes of the deceased which were secured by the Investigating Officer, on 2‑3‑1970. On an application (Exh. Is P. L.) he got recorded statements under section 164, Cr. P. C. Vakil Khan and Shah Muhammad P. Ws. and also that of Jamil Khan and Ruqqia Bibi not examined. He himself prepared the site plan anti also got it prepared from the Draftsman. After completion of the investigation he challaned the appellant.

3. Abdul Sattar Shah (P. W. 2) who was Dispenser in the Office of the Surgeon, Medico Legal. Punjab. Lahore proved post‑mortem report (Exh. P. O), diagrams of the seat of She injuries. Exh. P.O./2 and (P.O./3). He deposed that he was conversant with the handwriting and signature of Dr. Nusratullah who was posted as Dy. Surgeon, Medico‑Legal. Punjab, Lahore, with effect from 1967 to 1971 and thereafter, went to U.K. for higher studies and it was not known as to when the doctor would return to Pakistan. He had brought with him the original register containing post mortem report of the deceased and deposed that copies on record of the case were true copies of the original register and that the same were in the handwriting of Dr. Nusratullah. He identified his signatures on these reports. According to the post-mortem report (Exh. P. O.) Dr. Nusratullah conducted the post‑mortem examination on the dead body of Arshad Khan deceased on 14‑2‑1970 at 3‑30 p.m. and found the following injury :-- (1) Cut wound 5 " 1 " left side of neck lateran aspect at the level of upper part of thyroid cotilage. It extends out up to mid line, muscles of left side neck larynx oesapoages and 3rd cervical vertebrae are cut, spinal‑cord is cut. Clotted blood present at the cut edges of the tissues. In the opinion of Dr. Nusrat Ullah, death resulted from shock and haemorrhage caused by injury No. 1 which was sufficient to cause death is the ordinary course of nature. It was ante-mortem caused by heavy sharp‑edged weapon. The probable time between the injury and death was a few minutes and that between death and post-mortem examination was 28 hours.

4. At the trial prosecution examined thirteen witnesses in all, including Abdul Sattar Shah aforementioned. Vakil Khan, complainant (P. W. 11) was examined as eye‑witness but did not support the prosecution at the trial, was declared hostile and was cross‑examined by the Public Prosecutor but his statement before the committing Magistrate was got not transferred. His statement under section 164, Cr. P. C. was marked as Exh. P. N. and was proved by the Magistrate, Mr. M. A. Lone (P. W. 13). The other two eye‑witnesses namely, Mst. Ruqqia wife of me deceased and Jamil Khan were given up as won over. Shah Muhammad (P. W. 10) was examined as wajtakkar witness and that of extra‑judicial confession of the appellant but did not support the prosecution, was declared hostile, was cross‑examined by the prosecution and his statement before the C. M. was transferred to the Sessions record. Abdul Haq Lambardar (P. W. 9) was examined as witness of the recovery of blood‑stained earth from the spot. The same Abdul Haq was also examined as a recovery witness of the blood‑stained toka and blood‑stained clothes of the appellant which recoveries were also sought to be proved by Bhila Chowkidar (P.W. 8) who did not support the prosecution at the trial was declared hostile was cross‑examined by the Public Prosecutor and his statement before the committing Magistrate was transferred to the Session record. Mr. Afzal Baig, SHO (P. W. 12) proved all recoveries and supported the prosecution. Other formal witnesses were also examined and supported the prosecution. According to report (Exh. P. R.) of Serologist, the earth, toka and clothes of appellant were stained with human blood.

5. The appellant pleaded not guilty to the charge. When examined under section 342, Cr. P. C. he stated that some of his relations wanted to crease faction and bad blood between him and family of his uncle and managed to register a false case against the appellant. He denied the recovery of blood‑stained toka at his instance, and stated that one shirt and one chaddar was recovered from his house but none of the two were stained with blood at the time of recovery. He denied his participation and presence.

6. The learned trial Judge found that the F. I. R. was proved by the Investigating Officer and was corroborated by the recovery memos. which recoveries were supported by the Investigating Officer. He also took into consideration statement of P. W. Vakil Khan under section 164, Cr. P. C. The learned counsel for the appellant has submitted that the testimony of Vakil Khan P. W. be kept out of consideration because he contradicted himself in his statement before the committing Magistrate and also changed it at the trial. He has further submitted that there is no independent corroboration of the extra‑judicial confession to the testimony of Shah Muhammad P. W. Finally he has submitted that no reliance can be placed on the recoveries because evidence of recoveries is mutually destructive, the appellant ran away with a toka, his house was searched on the night of the day of occurrence when toka was not found there and the same was recovered from his house on the next morning. The learned counsel for the State has submitted that F. I. R. was promptly lodged in which name of the appellant was mentioned, statement of Vakil Khan P.W. was recorded under section 164, P. C., on 2‑3‑1970 and he applied for transfer of the case from Kasur to Lahore and that his statement in examination-in‑chief before the committing Magistrate be believed. He has further submitted, that recoveries that recoveries have been proved by the Investigation Officer who is to be believed when other witness have been won over and the recovery of weapon found stained with human blood connects the appellant with the crime. Finally he has submitted that extra‑judicial confession of the appel lant before Shah Muhammad P. W. stands proved by statement of this witness before the committing Magistrate which has been transferred to Sessions record and also by his statement recorded under section 164, Cr. P. C.

7. I have read the entire evidence and have considered it in the light of the submissions made by the learned counsel for the parties. The case against Vie appellant as brought by the prosecution is based on the ocular evidence, extra‑judicial confession of the appellant, recoveries of the blood- stained clothes and weapon of offence at the instance of the appellant the medical evidence and the motive. According to the F. I. R. the occurrence was witnessed by Vakil Khan (P. W. 11) son of the deceased. Mst. Ruqqia, wife of the deceased and Jamil Khan, cousin of the deceased Mst. Ruqqia and Jamil Khan have not been examined at the trial and were given up as won‑over. The prosecution examined only Vakil Khan P. W. a eye witness and also as a witness of the motive. The F. I. R. (Exh. P E,) was lodged on the statement of Vakil Khan P. W., his statement under section 164, Cr. P. C. (Exh. P. M.) was recorded on 2‑3‑1970, he was examined by the committing Magistrate and also at the trial. His statement before the committing Magistrate was not transferred to the Sessions record but the same could be done at the appellate stage. At the trial the pro secution did not request for its transfer to the Sessions record and there was a wisdom in it. Vakil Khan P. W. did not support the prosecution during inquiry and his statement before the committing Magistrate is con tradictory which makes him unreliable. At the trial he was declared hostile and was cross‑examined. He did not admit the contents of the F. I. R. and deposed that it was not read out to him. His conduct and his con tradictory statements at different stages have made him a lier. I do not consider it fit to rely on him in the safe administration of criminal justice and his testimony is ruled out of consideration. Therefore, there is no ocular evidence in the case.

8. The F. I. R. has been proved by the Investigating Officer, Iqbal Beg (P. W. 12). The evidence on record leads me to the conclusion that it was recorded subsequently after preliminary investigation. The names of the appellant did not appear in any paper till after the arrest of the appellant. His name is not mentioned in the title of the case after the word "Banam" act the injury statement (Exh. P. H./1). In the inquest report (Exh. P. H.) brief facts of the case regarding the occurrence had not been give in the relevant column provided for the brief facts. In memo. Exh. P. D. of the recovery of the recovery of blood-stained earth from the spot name of the appellant is not mentioned after the word Banam in the title of the case. As such the F.I.R. has not been proved. The presence of the three eye-witness mentioned in the trial, is doubtful because of the medical evidence. The nature of injury shows as if the deceased suffered it voluntarily. There is no cut on any part of the face, chin or any other part of it. Again it could not be caused in the presence of the three eye‑witnesses including the son who must have intervened before such an injury could be caused to the deceased in particular at the bands of the appellants who only a short while earlier had exchanged abuses with the deceased in the presence of these very eye‑witnesses. In the circumstances of the case a statement recorded under section 164, Cr. P. C. is not a substantive evidence. It rather makes the prosecution case doubt ful. In the instant case an application (Exh. P. L.) by the police for recording such statements including that of Vakil Khan P. W. was made on 24-2-1970 and the Court order allowing it was also obtained on the same day, but it was withheld by the Police and was put up to the Magistrate on 2‑3‑1970 probably to coerce the P. Ws. including Dr. M.A. Lone (P. W. 13) who were not agreeing. I am of the view that the ocular evidence is not worthy of reliance.

9. The recoveries of blood‑stained clothes from the person of the appellant and that of the weapon of offence, toka, are claimed to have been proved by the Investigating Officer, Iqbal Beg (P. W. 1 2:) apart from the testimony of Beela Chowkidar (P. W. 8) and Abdul Haq Lambardar (P. W. 9). In the inquest report (Exh. P. H.) the weapon of offence has not been specifically mentioned as toka and instead in the relevant column a sharp‑edged weapon is mentioned. The appellant was arrested at 10 p.m. of the day of occurrence from his house but the toka was recovered from the very house on the next day. In cross‑examination the Investigating Officer, Iqbal Beg (P. W. 12) deposed that although the weapon of offence was mentioned in the F. I. R. (Exh. P. E.) which was recorded at the police station due to which he knew the facts of the case yet his reply was that the weapon of offence was not in his knowledge at the time he moved for the place of occurrence. Evidently he took up this absurd position to remove the doubt created in the recovery of toka on 14‑2‑1970. The arrest of the appellant and recovery of blood‑stained shirt (Exh. P. 1) stained chaddar (Exh. P. 2) after getting it removed from the person of appellant is also doubtful. In his examination‑in‑chief, Iqbal Beg P.W. deposed that he deputed two constables to search out the appellant the time he remained busy with the investigation at the spot and arrested the accused on the same day at 10 p.m. from his house after receiving information about his presence there. In cross‑examination he contradicted himself to state that he himself kept a watch on the house of the appellant she evidence on record does not show that there was sufficient light except that one lantern is mentioned to have been carried by the party who went to make arrest of the appellant, to enable the Investigating Officer to notice stains of blood on the shirt and chaddar which the appellant was wearing at the time of occurrence. The clothes of the appellant are not likely to got stained with blood because the appellant is alleged to have delivered solitary toka blow and immediately thereafter ran away. It is not uncommon padding like blood stains on clothes and weapon is made during investigation. It appears that recovery of the toka on the next day is an thought because the Investigating Officer did not feel satisfied with clothes of the appellant. The toka was recovered from a Aala, a place in the wall, from a room of the house which is situated in the joint haveli occupied by number of other families and is accessable to them. The recovery witness Beela Chowkidar (P. W. 8) has not supported the prosecution at the trial and has made himself unreliable. Abdul Haq (P. W. 9) is a Lambardar under the influence of the police and cannot be relied upon in view of the conduct of the police officer who made investigation in this case. On the evidence on record I am satisfied that recoveries of the toka and clothes of the appellant are not proved beyond reasonable doubt.

10. The motive alleged by the prosecution has not been proved. Even otherwise the motive so alleged was not strong enough for the murder by the appellant of his real uncle. It has been given by Vakil Khan P. W. who has not been believed. The evidence of extra‑judicial confession alone cannot help the prosecution. The witness of extra‑judicial confession, Shah Muhammad (P. W. 10) is a wajtakkar witness. He claims to have came across the appellant carrying blood‑stained toka near the bridge of canal minor outside the village abadi immediately after the occurrence when the appellant confessed the gu;lt before him. It is strange that after committing murder, the appellant carried the blood‑stained weapon of offence in his hand outside the village and brought it back to his house wherefrom it was recovered next day. This Shah Muhammad P. W. did not support the prosecution at the trial which has made his statement before the committing Magistrate a tainted evidence. On the evidence on record and in the circum stances of the case the guilt of the appellant has not been proved beyond reasonable doubt.

11. As a result of above discussion, the appeal is accepted, conviction and sentence of the appellant is set aside and he is acquitted. Appeal allowed.