1994 PLP 1179 (SCMR)

2. The deceased was a transporter by profession and also had a shop in the KDA building near Mauripur truck stand where he sold lubricants as an agent of the Caltex Company. On 5‑12‑1992 he closed his shop early on account of electricity break‑down in the area. The time then was 7‑30 p.m. His son, Shakoor Alam (P.W.1) was with him. After locking the shop they started for their house. The deceased was carrying a bag containing some papers and a sum of Rs.1,

500. Suddenly, a young Baloach Makarani appeared. He snatched the bag from the deceased. When the deceased resisted the snatcher took out a pistol, and fired at him in the chest and ran away with the bag. The deceased became unconscious. Shakoor Alam (P.W.1) put him in a suzuki‑van which was parked nearby and drove him to the local civil hospital. The deceased died before any medical assistance could be given to him.

3. On hearing about the occurrence Inspector Mirza Abdul Majeed (P.W.12) of Police Station Bughdadi reached the hospital where he recorded the statement of Shakoor Alam (P.W.1) at 10‑15 p.m. On the basis of this statement a case was subsequently registered at the said Police Station.

4. According to the prosecution, on 14‑12‑1992, shortly after midnight, the appellant and the respondent were taking tea at the Fayyaz Peshawari Hotel in Khadda Market. Inspector Mirza Abdul Majeed (P.W.12) arrested 'them at the pointing put of Shakoor Alam (P.W.1). They were searched. The respondent had a currency note of the denomination of Rs. 100 and his identity card with him. The appellant was hiding a plastic bag in the fold of his Shalwar. The bag contained a loose crossed cheque drawn by the deceased on 24‑9‑1992 in favour of the National Petroleum Company, a cheque‑book and some papers.

5. The appellant as well as the respondent pleaded not guilty to the charge of committing haraba. They denied that they were responsible for causing the death of the deceased or of robbing him of the bag containing money and documents including the cheque and cheque‑book. They also denied that they were arrested in the manner stated by the prosecution. They alleged that they had been falsely implicated in the case. They produced two witnesses in their defence.

6. There is little doubt that the deceased was fired at and killed near his shop in the KDA building. The main question for consideration before the Court is if the appellant and the. respondent were responsible for this dastardly act. To prove its case against them the prosecution relied upon the ocular testimony of four witnesses, namely, Shakoor Alam (P.W.1), Muhammad Ibrar (P.W.2), Muhammad Rafi (P.W.7) and Muhammad Ijaz (P.W.9). As already noticed, Shakoor Alam (P.W.1) was the son of the deceased. Muhammad Ibrar (P.W.2) was a servant of the deceased at the relevant time. Muhammad Rafi (P.W.7) and Muhammad Ijaz (P.W.9) lived in the vicinity of the scene of occurrence.

7. The occurrence took place in the month of December at 7‑30 p.m. when it must have been fairly dark. There had been an electricity failure in the area and it was for this reason that the deceased had to close his shop early. In the first information report Shakoor Alain (P.W.1) did not give the name of any of the assailants of the deceased even though, admittedly, he had known one of them, namely, respondent, for a long time. In that report he attributed the attack on the deceased to only one assailant who appeared to be "jawan ul umr" and " baloch makrani". This description does not apply either to the appellant or the respondent. It may be mentioned that the learned trial Judge who had seen the appellant and the respondent observed that neither of them could be described as "jawan ul umr" or " baloch makrani". In this context he observed: "The description of‑the culprit was also different from that of the present accused Muhammad Rafiq and Ali Muhammad. They are not Makranis. Ali Muhammad is an old man. He is a refugee from East Punjab, while Muhammad Rafiq is from Punjab. Neither of ‑ them looks like a Makrani Baloch." At the trial Shakoor Alam (P.W.1) gave the description of the companion of the respondent as one with a beard and of wheatish complexion. Quite obviously, it was an effort to make the description fit to the appellant.

8. The version of the prosecution at the trial was different in material details from the one that was recorded in the first information report. As already stated, the first information report was based on the statement which Shakoor Alam (P.W.1) made before Inspector Mirza Abdul Majeed (P.W.12) within three hours of the occurrence. The story in the first information report was very simple: a young person looking like a Baloach Makrani snatched the bag from the deceased and when the latter resisted the snatcher fired at and killed him; apart from Shakoor Alam (P.W.1) himself the name of no other eye‑witness was mentioned therein. At the trial, the story of the prosecution was in many respects different. It was alleged that at the relevant time 'Muhammad Ibrar (P.W.2) was also present and was carrying a battery tube light; the tube‑light was on; Muhammad Ibrar (P.W.2) and Shakoor Alam (P.W.1) stayed behind to lock the godown while the deceased who was accompanied by the respondent and the appellant went ahead; shortly thereafter the report of a pistol shot was heard and the appellant passed by Shakoor Alam (P.W.1) with a pistol in his hand. It is to be noticed that although Shakoor Alam (P.W.1) was not satisfied with the police investigations yet at no stage he took up the position that the story given in the first information report was not true. In view of the differences between the two Versions the one preferred at the trial can hardly be accepted on its. face value.

9. As already stated, the names of Muhammad Ibrar (P.W.2), Muhammad Rafi (P.W.7) and Muhammad Ijaz (P.W.9) who at the trial gave the ocular account of the occurrence, do not find mention in the first information report. In fact, the statement of Muhammad Ijaz (P.W.9) was recorded for the first time by the Investigating Officer many days after the occurrence. The possibility therefore that these witnesses were not present at the scene of the occurrence when the deceased was attacked cannot be excluded. It will not be safe to rely upon their testimony, particularly when their version is at variance with the earliest account of the occurrence as given by Shakoor Alam (P.W.1) to Inspector Mirza Abdul Majeed (P.W.12).

10. Even if it be assumed that the eye‑witnesses were present at the scene of occurrence at the relevant time, their evidence does not carry conviction. It is to be noticed that almost all the eye‑witnesses have admitted that both, the appellant and the respondent, had accompanied the deceased to the civil hospital in the Suzuki‑van. Now, if Shakoor Alam (P.W.1) and the other eye witnesses had been able to identify the assailant/assailants of the deceased it is unlikely that the witnesses would have permitted them to do so. This admission also belies the prosecution case that the appellant and the respondent had after firing at the deceased disappeared from the scene of occurrence. It is also in evidence of Muhammad Ijaz (P.W.9) that the appellant and the respondent were present in the vicinity of the house of the deceased even on the day after the occurrence. It is somewhat strange that no effort was made by any one to capture the assailants either at the time when they were going with the deceased to the hospital or on the following day when they were found present near the house of the deceased. Considering the conduct of the eye‑witnesses and of the persons tried for the murder of the deceased it becomes difficult to accept the claim of the eye‑witnesses that they had been able to identify the persons or person responsible for the killing of the deceased and robbing him of his bag.

11. The prosecution further alleges that the appellant and the respondent were arrested in Fayyaz Peshawari Hotel in the early hours of 14‑12‑1992 and on their search a hundred rupees note and an identity card were recovered from the respondent and a plastic bag containing a loose cheque, a cheque book and some papers were found on the person of the appellant. In support of this part of its story the prosecution has relied upon the testimony .of Shakoor Alain (P.W.1), Muhammad Ramzan (P.W.4) and Muhammad Aslam (P.W.6). It is not the case of the prosecution that the currency note recovered from the respondent was part of the money stolen from the deceased. The identity card, as already noticed, was of the respondent himself. Thus, so far as the respondent is concerned, the recoveries made from him do not further the case of the prosecution. As regards the recoveries made from the appellant it may be noticed that the loose cheque, the cheque‑book and the accompanying papers were of no use to the appellant. It is unlikely that he would be carrying these documents on his person. On the other hand, he had sufficient time after the occurrence to get rid of them if he was in fact the person who had snatched the bag from the deceased. As already noticed, the appellant and the respondent denied that they were arrested from the hotel in the manner suggested by the prosecution. However, that may be, we have doubts about the credibility of the case of the prosecution with regard to the place and the manner of the arrest of the appellant and the respondent.

12. For the reasons stated above we are of the opinion that the prosecution has not been able to prove its case against the appellant and the respondent. Accordingly, we dismiss appeals preferred by the State against the acquittal of the appellant and the respondent on the charge of committing haraba. We also set aside the conviction and sentence of the appellant on the charge under section 411, Pakistan Penal Code, and acquit him. He shall be set at liberty forthwith if not required in any other case. N.H.Q./114/SA.C. Order accordingly.