1990 P Cr (PLP)

4. The police station is located at a distance of one kilometre from the Punjab Cinema and Ghulam Akbar dictated the F.I.R. at Police Station Sadiqabad City at 9-15, p.m. which was recorded by Muhammad Nazir, A.S.I. P.W.13.

5. The autopsy on the dead body of Kalandar Bakhsh was conducted by Dr. Abdul Wahab, P.W.4, who had reported the following injuries on his person: -- (1) Multiple (seven) lacerated wounds of entry. One central bigger 1-1/4" x 1" x bone deep surrounded by 6 lacerated wounds of entry 1 / 4" in diameter on the left side of the face. Spread in an area of seven injuries, heft angle of mandible, chin, left maxilla and nose. Mandible and maxilla were fractured into pieces. Teeth were fractured and dislocated. Waddings were removed from the central wound and pellets from the mouth and handed over to the police in a sealed bottle. (2) Nine circular lacerated wounds of entry 1/4" in diameter on left side of the chest, left axillary line 1" front the left nipple upto 3" below the left nipple spread over an area of 5". Ribs were fractured and pellets were removed. (3) An abrasion 1" x 1/3" on the left side of nose.

6. This medical expert has opined that injuries Nos. 1 and 2 were individually and collectively sufficient to cause death in the ordinary course of nature. Stomach was healthy and empty.

7. The police went to the spot and collected blood-stained earth and two empty cartridges Exh.P.12-13 from the spot which were taken into possession vide memo. Exh.P.J. Muhammad Ashiq, Khalid and Abdul Rehman were arrested on 24-7-1983, whereas Kausar Saqlan Shah was arrested on 30-7-1983 and their respective weapons of offence were got recovered on the, dates of their arrest. From Muhammad Ashiq appellant, a carbine Exh.P.7 was taken into possession on 24-7-1983. Two live cartridges Exh.P.7/1-2 were also taken into possession from him vide memo. Exh.P.K. After the completion of the investigation, the challan of all the four accused were submitted. As a sequel to the impugned trial, the appellant was awarded the aforementioned punishment, whereas his accomplices were acquitted.

8. Ghulam Akbar, the complainant appeared as P.W.9 and has narrated as to how he, Haji Muhammad Iqbal, and Haji Ghulam Akbar went to Sadiqabad to see a movie and witnessed this incident. He has stated that Abdul Rehman was not known to him prior to this occurrence and he did not make any effort to rescue Kalandar Bakhsh from the clutches of the accused. He has added that Kausar Saqlan Shah did not fire at Kalandar Bakhsh as he had arrived bit late. In this manner, Ghulam Akbar and other ocular witnesses have exonerated Kausar Saqlan from the murder charge although it was specifically stated in the F.I.R. that he also fired at Kalandar Bakhsh. He has stated that he made purchases and did not take any meals at Sadiqabad before proceeding to the cinema house and Kalandar Bakhsh and himself had actually pushed Muhammad Ashiq and Abdul Rehman out of the bus. He is stated to have produced the blood-stained clothes before the police as they were smeared with blood when he had lifted Kalandar Bakhsh. He has denied his affidavit produced at the bail stage before the Sessions Court. It was suggested to him that he had compromised with the other party. In the F.1.R. he has stated that the fire of Ashiq had hit the left armpit of Kalandar Bakhsh but at the trial he has stated that it had hit his left arm. He has added that he had joined the investigation of the case on the next day of this occurrence and the police had arrested all the accused. He corrected himself and went on to say that they were arrested after 18 days of the registration of the case. He has stated that it is incorrect that all the four accused had fired at Kalandar Bakhsh and had admitted that his statement in the F.I.R. was false. He had no business at Sadiqabad on the day of occurrence. He could not tell the parentage, caste and residence of the accused persons but in the F.I.R. their parentage and residence have been given in detail. He also stated that he did not make any purchases. All the accused were arrested on the same day and the articles were recovered from them on the same day. According to his divergent statement, he was declared hostile and the learned District Attorney cross-examined him. As held in Muhammad Abdullah v. The State P L D 1963 (W.P.) Pesh. 161, a prosecution witness who has been declared hostile his statement loses all evidentiary value and cannot he used in favour or against the prosecution. In this case, Ghulam Akbar, the complainant had demolished the case by stating that the police had got his thumb-marks on his statement near Punjab Cinema and not at the police station. His statement can rightly be discarded.

9. Haji Muhammad Iqbal P.W.10 and Haji Ghulam Akbar P.W.11 have supported the prosecution case but they had differed on the point that Kausar Saqlan came afterwards and did not fire at Kalandar Bakhsh at all. The statement of Haji Muhammad Iqbal is replete with confrontations and he has clearly admitted that his statement, that all the four accused had fired at the deceased, is incorrect. Haji Muhammad Iqbal and Haji Muhammad Akbar live at a distance of 70 miles from the place of occurrence and have not justified their presence in Sadiqabad at the spot. They had not made any programme to see a movie at Sadiqabad and this programme was made by them when they reached Sadiqabad. Haji Muhammad Iqbal P.W.10 has stated that they did not make any purchases and kept walking in the Bazar till they went to the Punjab Cinema and he had no business at Sadiqabad. According to him about 50/60 persons were present in the cinema compound at the time of this incident and none of them has been cited as an ocular witness. Haji Muhammad Iqbal P.W.10 has differed with the complainant by stating that they had taken tea, fruits, biscuits and other edibles 10 or 15 minutes before the sunset.

10. Haji Ghulam Akbar P.W.11, has stated that the appellant fired at Kalandar Bakhsh on his left flank and the other accused except Kausar Saqlan also fired at Kalandar Bakhsh simultaneously. He has also exonerated Kausar Saqlan Shah. He has stated that they had started from the house of the complainant in order to see the movie. He could not give time of the show nor could he tell the name of the picture which was being exhibited in the Punjab Cinema on that day. He has also differed with the complainant by stating that they did not make any purchases on the day of occurrence and took some edibles at the bus-stand as their evening meals. He did not know the names of the accused when he made a statement before the police and lived at a distance of 70 miles from the place of occurrence. According to him he has stated the features of the accused persons before the police and no identification parade was held. His clothes were also stained with blood at the time of the incident and he did not show his blood-stained clothes to the police.

11. Kamal P.W.12, who according to the F.I.R. had pushed out Abdul Rehman and Muhammad Ashiq from the bus with the assistance of the complainant has narrated another story. He has clarified that Ghulam Akbar, the complainant, Haji Muhammad 1qbal and Haji Ghulam Akbar P.Ws. boarded his bus when Kalandar Bakhsh demanded the fare from the appellant. On refusal, Kalandar Bakhsh pushed out Muhammad Ashiq and Abdul Rehman from the bus and the accused threatened Kalandar Bakhsh with dire consequences. He has stated that he went to the police station after the occurrence with the ocular witnesses where they were shown to the accused persons and the police told their names. He did not state before the police that all the ocular witnesses had travelled in the bus on the day of the first incident. According to him these P.Ws. had never travelled with him on any day after the first occurrence.

12. Muhammad Nazir A.S.I. P.W.13 had prepared the injury statement, recorded the F.I.R. and had effected certain recoveries. He has entirely spoiled the prosecution case by stating that it was correct that the accused persons were not known to the eye-witnesses and their names and residences were disclosed to them by some other persons and he had not inquired the names of the persons, who had told them the names of the accused nor did he care to record their statements. He was not in a position to tell the names of those who had disclosed the names of the accused. He did not associate any person from the public at the time of effecting the recoveries although a number of persons were present there.

13. Muhammad Ashiq accused completely denied his involvement in this case and pleaded to be innocent.

14. According to the F.I.R. the motive for the commission of this crime is not very evident. Kalandar Bakhsh had simply demanded the fare which was refused to him by the appellant and the appellant abused Kalandar Bakhsh. The appellant and Abdul Rehman were pushed out of the bus by Ghulam Akbar, the complainant and Kamal, the driver and in that event the motive should have been to kill Kamal or the complainant, who had insulted Muhammad Ashiq and his companion Abdul Rehman. Strangely enough Ghulam Akbar did not receive a scratch on his body. The statement made in the F.I.R. has been changed to suit the convenience of the prosecution and it has been deposed by the ocular witnesses that Kalandar Bakhsh had pushed the appellant out of his bus. This glaring discrepancy has not been reconciled and the motive in this manner has not been proved.

15. Ghulam Akbar, the complainant, was declared hostile. Haji Muhammad Iqbal and Haji Ghulam Akbar live at a distance of 70 miles from the place of occurrence and do not jusitfy their presence at the spot. Muhammad Iqbal and Haji Ghulam Akbar P.Ws. are the nephews of the deceased whereas Ghulam Akbar, the complainant, is the brother-in-law of Kalandar Bakhsh deceased. All of them have exonerated Kausar Saqlan Shah an accomplice of the B appellant and have differed on the factum of making purchases or having their evening meals. The medical evidence does not advance the prosecution case. They do not know the name of the film which they wanted to witness and do not state anything whether there was any light outside the cinema hall at the time of this incident. In this manner the statements of the eye-witnesses can hardly be believed.

16. The story regarding the recovery of the fire-arm has rightly been disbelieved by the learned trial Court. It may, however, be noted that two empty I cartridges were collected from the spot just after this incident but they have net been mentioned in the inquest report or in the site plan. The Investigating Officer appears to have spoiled the prosecution case and the reasons for so doing do not appear to be innocent. It was the imperative duty of the Investigating Officer to have conducted identification parade of the accused as they were not known to the eye-witnesses before but no step in this direction was taken. This fact proves fatal to the prosecution case as the test identification parade was absolutely necessary when the appellant was not known to the eye-witnesses before. This proposition has been supported by Naeem Ullah Hashmi v. The State 1987 M L D 1966. The prosecution has miserably failed to substantiate its case against Muhammad Ashiq and on account of glaring discrepancies, I accept this appeal, set aside the conviction and sentence of the appellant, and acquit him of the charge of murder framed against him. He may be set at liberty forthwith, if not required to be detained in any other case. N.H.Q./M-1591/L Appeal accepted.