1994 P Cr (PLP)

The occurrence took place between the night of 6/7 December, 1987 in the land of Mehr Zalli Shah, resident of Wandha Baiwala, Dakhli Sultan Khel Gharbi, within the area of Dakhli Sultan Khel, 14 miles from the Police Station Kamar Mashani. Complaint Exh.P.A. was lodged by Sher Khan, P.W.12, on 7‑12‑1987 at 4 p.m. near Mandi Makarwal, which was recorded by Muhammad Hayat, SX, P.W.13. Formal F.I.R. Exh.PA./1 was registered the same day at 5 p.m. by Amanullah, A.S.I/Moharrir, P.W.1. . Muhammad Hayat, S.I., P.W.13 after recording statement Exh.PA. went to the spot. He prepared injury statement Exh.P.K. and inquest report Exh.P.L. of the deceased and sent the dead body for autopsy. Blood‑stained earth was secured from the spot vide memo. Exh.P.F. One empty cartridge P.9 was taken into possession from the spot vide memo. Exh.P.G. From the personal search of Rab Nawaz, deceased, one .30 bore pistol P.10 with two empty cartridges P.11/1‑2 and a missed cartridge was recovered from the right pocket of his shirt, which were secured vide memo. Exh.P.H. He also secured driving licence, identity card, Rs.450 with ten live cartridges from the other pocket vide memo. Exh.P.J. He arrested the accused on 1‑1‑1988, and on 6‑1‑1988 he got prepared site plan Exh.P.C. and Exh.P.C./1. On 10‑1‑1988, the accused got recovered .12 bore pistol P.7 with five live cartridges P.8/1‑5 from his room, which were secured vide memo. Exh.P.E. All the memos were got attested by him from the witnesses. P.W.6 Dr. Sher Ali, Medical Officer, Civil Hospital, Kalabagh, on 8‑12‑1987 at 8 a.m. conducted the post‑mortem examination on the dead body of Rab Nawaz, aged 30 years, and found the following injury:‑‑ (1) A fire‑arm wound 5 c.m. x 4 c.m. on the back of right chest. Edges were not blackened. It was a wound entry. In his opinion, death had occurred due to shock and haemorrhage and asphyxia due to presence of pellets in the trachea. The injury was sufficient to cause death in the ordinary course of nature.

3. Prosecution in support of its case produced 13 witnesses in all. P.W.1 Amanullah Khan, A.S.I. had registered the formal F.I.R. Exh.PA./1. P.W.2 Ghulam Abbas, F.C., as Moharrir on 7‑12‑1987 received sealed parcels containing blood‑stained earth and empty cartridges. He kept them in Malkhana till 23‑12‑1987, and thereafter sent them for examination. P.W.5 Jahangir Khan, Patwari, on the directions of police prepared site plan Exhs.P.C. and P.C./1 on which the Investigating Officer gave his notes in red ink. P.W.7 Ghulam Qasim had witnessed the recovery of .12 bore pistol P.7 at the instance of the appellant. P.W.8 Sahib Din had deposed about having last seen the deceased in the company of the appellant. P.W.10 Ghulam Muhammad also deposed regarding having last seen the appellant in the company of the deceased. P.W.11 Alam Khan had witnessed the recovery of empty cartridge P.9, and blood‑stained earth from the spot. P.W.12 Sher Khan had got the present case registered. The case was investigated by P.W.13 Muhammad Hayat, S.I. At the conclusion of the prosecution evidence, the appellant was examined without oath, wherein he refuted the prosecution allegations and pleaded innocence. He, however, did not choose to produce any evidence in his defence.

4. It was contended by learned counsel for the appellant that the case against the appellant was absolutely false. He was neither named in the F.I.R. nor there was any direct evidence. Contended that all the witnesses were interested and inimical, therefore, could not be relied upon. Argued that there is ample evidence to indicate that the appellant could not be an employee of his enemy. Argued that there are inherent defects in the prosecution case which render it worthless. The contentions were opposed by learned counsel for the State. 5. 1 have heard the learned counsel at length and gone through the evidence. Prosecution in order to establish its case had relied upon evidence of extra judicial confession, motive and evidence of last seen and sought corroboration from recovery of pistol effected at the instance of the appellant which matched with the empty recovered from the spot. Evidence of extra -judicial confession has been furnished by Sahib Din, P.W.8. According to him, on 7‑12‑1987 at 7 p.m. he was present in his house when the appellant came to him and sought his help informing that he had murdered Rab Nawaz with a pistol. The witness showed his inability, whereupon the accused went away. The witness was cross‑examined at length. The witness had also claimed that the appellant was employed as a cleaner on the truck of his son Malik Din. When the appellant made extra judicial confession before him, he did not bother to inform the police. He just ignored as if some thing very insignificant had happened. It cannot be assumed that he did not know the gravity of this situation, because the witness himself was involved in a number of criminal cases, including murder cases. A positive enmity was suggested to the witness with the appellant. In such circumstances, it is impossible to imagine that the appellant would go and make a confessional statement before a person who was his enemy. Therefore, the evidence of extra judicial confession can safely be ruled out. Muhammad Iqbal, P.W.9 has furnished evidence of motive as well as last seen. According to him, on 6‑12‑1987 at 7 p.m., while he was on his way to his sister's house, wife of Rab Nawaz deceased, he saw the appellant with the deceased near the Muslim Commercial Bank. He heard the appellant demanding money from Rab Nawaz, deceased. On enquiry made by the witness about the dispute, Rab Nawaz, deceased, simply asked him where he was going, whereupon he went to his sister's house and learnt about the incident later. As far as the motive in the instant case is concerned, it has not been furnished by this witness. The statement made by him was to the effect that he had last seen the appellant with the deceased at 7 p.m. He was a close relation of the deceased. The witness was cross‑examined at length. He admitted that he was a close relation of the deceased, and, therefore, interested. The witness has not indicated any enmity prevailing between the appellant and the deceased. He has not said a word about the motive which could prompt the appellant for the commission of the offence. He had seen the appellant with the deceased at a thoroughfare near the bank, to which no exception can be taken. It has to be kept in mind that at the time of occurrence the appellant was about 15 years of age, whereas the deceased was 30 years of age. After going through the statement of this witness, it is held that it does not advance the prosecution case in any manner. P.W.10 Ghulam Muhammad stated that on 6‑12‑1987 at 8 p.m. saw the appellant present with Rab Nawaz, deceased, near the telephone exchange, going together. On enquiry, he informed that he was going to see off Awwal Nawaz. The reason given by this witness was that he was called by his incharge, where he worked. The witness has not deposed a word if any altercation or exchange of hot words was going on between the appellant and the deceased nor he has stated that the appellant was armed at that time. His statement is in conflict with the statement of Muhammad Iqbal, P.W.9, because both of them almost at the same time had seen them at different places, yet they did not come across each other, which casts a serious doubt. The motive has to put C forward by the prosecution that the appellant had lent some money to the deceased who did not return the same, therefore, the present occurrence does not appeal to reason. Prosecution has not been able to establish that the appellant was an employee of Malik Din, son of Sahib Din, P.W.8. Police did not even bother to record the statement of said Malik Din to that effect. According to the prosecution case, the deceased after having his meal went out again on the pretext that he wanted to bring some thing from the truck; yet, instead of going there he went to another place where his dead body was found. There is nothing on record to indicate if the appellant knew that the deceased would come back again or he would go to a place which was deserted. The upshot of the discussion is that the prosecution has not been able to prove its case beyond doubt. It would be extremely unsafe to rely upon the prosecution evidence, which neither inspires confidence nor rings true. Therefore, the appeal is accepted and the conviction and sentence of the appellant is set aside. He shall be released forthwith if not required in any other case. N.H.Q./A‑413/L Appeal accepted.