1975 P Cr (PLP)

Munir led to the recovery of a '12 bore pistol from the palls of chaff in his field. Both the weapons were sealed into separate parcels. These recoveries were witnessed by Faqir Hussain (P. W. 11) and Amanat Ali (P. W. 12) besides S. I. Muhammad Masud (P. W. 21).

9. The complainant and the accused party are related to each other but it appears from the record that there was acute enmity between them. On 4th of May 1967; Shani (the dead accused). Alif Din and Latif appellants and Said, their relative, set fire to the barley crop of Rashid deceased. A case under section 435/440, P. P. C. was registered against them at the in stance‑of the deceased. The copy of the F. I. R. in that case is Exh. P. S. on this record. On 11th of December 1967, while the above case was pend ing, Mst. Pahna, the father's sister of Abdul Rashid deceased was allegedly done death by hour persons, namely, Shani, Nur Ahmad, Bashir and Said. Said was sentenced to death and his case has recently been disposed of by a Bench of this Court. Shani, as mentioned above, had escaped even during the Pahna's case and it is said that in order to eliminate the evidence against him in that case, he alongwith his co‑accused committed the murder of Abdul Rashid. There were also security proceedings between the deceased and Alif Din appellant before the present occurrence.

10. The empty recovered from the spot reached the Forensic Laboratory on 3rd of February 1968. Again, on 13th of February 1968, three parcels were delivered in the Forensic Laboratory. The first parcel delivered on 3rd of February 1968, contained a '12 bore crime empty which was marked by Muhammad Sarwar (P. W. 22), Firearms Expert, as `C‑1'. One of the three parcels received on 13th of February 1968, contained three crime empties of 303 bore and were marked as `C‑2' to `C‑4'. The second parcel contained the '12 bore single barrel shot‑gun and the fourth parcel con tained a '12 bore pistol. Another parcel contained one `303 rifle. The comparison made by the Firearms Expert shows that the 12 bore crime empty marked 'C‑1' received on 3rd of February 1968, in the Laboratory was wedded to the '12 bare SBBL shot‑gun.

11. The learned trial Judge who convicted the appellants observed that there was no contradiction in the narrantion given by the eye‑witnesses and that all the appellants bad taken part in attacking the deceased. He further observed that Abdul Hamid and Barkat Ali son of Hakim P. Ws., in any case, were not inimical witnesses and their testimony being in line with the statements of other witnesses was worthy of reliance. He also relied upon the recoveries of firearms from Latif and Munir.

12. The defence version in this case was that Shani, the deceased accused, along with some other companions (not the appellants) had attacked Abdul Rashid during the night while he was watering this fields. The learned counsel in this connection invited our attention to the post‑mortem report, according; to which the stomach of the deceased was found empty. It was his contention that if the store of the prosecution that the deceased left his house along with his companions at about 8 a.m. is correct, then he could not have gone for work on an empty stomach, Mst. Saidan, the widow of the deceased, when questioned as to whether her husband had eaten something that morning or not, said that she could not say anything positively. We find from the statement of Nazir Ahmad (P. W. 15) that the turn of water of the deceased started on Wednesday night and finished on Thursday at 11‑45 a.m. Eighteenth of January 1968, happens to be Thursday. In the circumstances of tile case it cannot be said that the defence theory that the deceased had been done to death while irrigating his own land is without substance.

13. In respect of the contention that the deceased had been attacked lay Shani and his companions other than the appellants, the learned counsel invited our attention to the statement of Abdul Hamid P. W. wherein he admitted that Nur Muhammad had turned out his son Shani from his house for his bad deeds and that lie was absconding in connection with the murder case of Mst. Pahna. He argued that it could not be said that the three brothers of Shani and Atif Din would join hands with an outcaste and commit a murder. It was also the alternative case of the defence that the deceased might have been done to death by the Meos, because Nur Muhammad Meo had been murdered by Rashid deceased and Abdul Hamid

14. We are not quite sure whether the first information report in this case was lodged in the police station as is claimed by the prosecution. Abdul Hamid (P. W. 17) made a significant admission that the police had recorded the statements of Nazir and other P. Ws., including himself, at the spot and that Nazir had signed his statement. The learned trial Judge repelled the contention of the defence in this respect mainly on the ground that the witness had not positively said that the F. I. R. had been recorded at the spot. We have looked up the record and we do not find that there is and other statement recorded by the police which bears his signa tures, except the F. I. R. This admission by a prosecution witness was, therefore, rightly pressed into service by the learned counsel for the defence. There are also clear indicators on the record that the P. Ws. did not know the names of the perpetrators of the crime soon after it was discovered. Barkat son of Nawab (P. W. 10) said that when he reached the place where dead body was lying, he found Faqir Hussain and Nazir present there. They did not tell Lim as to who had killed the deceased and it was only after the arrival of the police that he knew that Shani had done the deceased to death. Faqir Hussain (P. W. 11) the son of Mst. Pahna, who was allegedly done to death by Shani and other members of his family, had stated before the committing Magistrate that he was told that the deceased had been done to death by Shani and his companions. He left the companions of Shani unnamed before the committing Magistrate. He had also not stated before the committing Magistrate that when he went to the spot lie found Nazir present there. On the other hand, he told the committing Court that he along with Barkat and some women were present at tile spot. The story told at the trial that Nazir and Hamid were also present at the spot is not supported by the earlier statement of this witness. If Hamid and Nazir were present in the haveli as they claim to be, there is no reason why they should not have reached the spot with Faqir Hussain. The occurrence is said to have taken place at 8 a.m. and the police arrived at 10 a. m. It is, therefore, permissible to conclude that Nazir and Hamid were not present b at the time of occurrence and were introduced as eye‑witnesses after deliberation.

15. The story that the deceased was proceeding to Kot Mela Ram along with Nazir his brother and Abdul Hamid (P. W. 17) to much cattle, does not get corroboration from any circumstance in this case. Faqir Hussain P. W., a cousin of the deceased, stated at the trial that he did not know the errand which took Rashid out of his house. Both Abdul Hamid and Nazir said that they were carrying utensils while the deceased was carrying a garvi and a basket. They said that they threw away their utensils while they were being pursued, but found that those utensils had disappeared after the arrival of the police. They have not said anything as to what happened to the garvi and the basket that the deceased was carrying. It is not the case of the prosecution that these utensils were carried away by some people in their absence. The witnesses claimed to have arrived at the spot immediately after the incident. The garvi and the basket which were allegedly in the band of the deceased must have fallen near the place where he fell dead.

16. It is also the case of the prosecution that when the deceased had fallen, all the assailants went near him and fired. The deceased had only gun shot injuries and the statements of the eye‑witnesses who said that ail'' the assailants I ad fired from their weapons is belied by the medical evidence. This clearly shows false involvement.

17. It has not been proved with certainty that the deceased was shot dead in the field of Suba as alleged by the prosecution witnesses. The In vestigating Officer took possession of the blood from underneath the cot on which the dead body was lying, but he did not take any blood from the spot where the deceased was attacked and done to death. Khushi Muhammad Patwari (P. W. 2) who prepared the plan did not see any blood at the alleged place of occurrence. The collection of blood‑stained earth from the spot is a very material evidence to locate the actual venue of the incident. In this case it has not been done.

18. We have said that parties are related. The phuphi of the deceased was married to Meraj, the brother of Nur Muhammad father of Latif, Munir and Inayat appellants. Mst. Saidan the widow of the deceased is the daughter of aforesaid Meraj and is thus a first cousin of the aforesaid appellants. Amanat Ali (P. W. 12) the witness of recovery of the gun and pistol is a brother of Mst. Saidan. Both Saidan and Amanat were the witnesses for prosecution in the murder ease of Mst. Patina. It was also admitted by Nazir Ahmad P. W. that there was enmity existing between them and the accused and that there had been security proceedings between his deceased brother and Alif Din appellant. Abdul Hamid P. W. further bore testimony to this enmity when he said that even before, the javi crop of the deceased was set at fire, there was enmity between Shani accused and Rashid deceased.

19. Reference has been made above to the observation of the learned trial Court that Barkat Ali son of Hakim (P. W. 16) and Abdul Hamid (P. W. 17) were not inimical witnesses. We do not think that this observa tion of the learned trial Court is factually correct. Abdul Hamid is a first cousin of Abdul Wahab a maternal uncle of the deceased. The wife of Lal P. W. is the niece of this Wahab while Saidan the widow of Abdul Rashid is the sister's daughter of Abdul Wahab. It is, therefore, clear that Abdul Hamid is closely related to the deceased. Barkat son of Hakim is a Wajtakkar witness. He comes from village Uche Ladheke. He stated at the trial that he had come to ask after the health of the mother of Abdul Hamid P. W. but he had not mentioned this fact before the committing Magistrate. He is also related to the complainant as his brother is married to the sister of Abdul Hamid (P. W. 17). It, therefore, cannot be said that Hamid and Barkat Ali son of Hakim were unattached witnesses and could not have been influenced by the enmity that existed between the parties. The scrutiny of their evidence is to be made subject to the same conditions which apply to the testimony of inimical witnesses. We have found above that the F. I. R. was drawn up at the spot after deliberation and the story of these two witnesses that they accompanied the deceased along with Nazir is doubtful. Their word can be made the basis of capital punishment only when very strong corroborative evidence is available.

20. The learned Additional Sessions Judge found corroboration as against Latif and Munir because a gun and a pistol had been recovered from them and that the 12 bore empty found at the spot had been wedded to the gun recovered from Latif. The witnesses of these recoveries are Amanat and Faqir Hussain who are admittedly inimical to the accused Faqir Hussain is the son of Mst. Pahna for whose murder Shani and other 9 members of his family were prosecuted while Amanat Ali is the sister's son of Mst. Pahna and was a prosecution witness in the case relating to her murder. Amanat Ali had stated before the committing Magistrate that the gun was recovered from a kotha belonging to Said accused. According to the Investigating Officer the gun was recovered from a heap of rubbish outside the haveli of Latif. Imam Din (P. W. 7) who is the witness of the arrest of Shani deceased stated that a gun was recovered from Shani, although the case of the prosecution is that a rifle was recovered from him. The gun was recovered from a heap of rubbish near a pond outside the house of Latif. It, therefore, cannot be said that he had the exclusive knowledge of the presence of the gun there. The Investi gating Officer said that he could not get better evidence and, therefore, he joined these two hostile witnesses in the investigation at the time of the recoveries. The recovery of pistol from Munir is inconsequential because no empty was found wedded to it.

21. The prosecution evidence is also not uniform as to the date on which the gun recovered from Latif appellant was delivered in the Forensic Laboratory. The recoveries according to the memo. Exh. P. C. and P. D. were effected on 5th of February 1968. Sabir Hussain Shah (P. W. 20), however, stated that Malik Muhammad Masud had delivered to him on 3rd of February 1968, two sealed parcels containing a gun and a pistol separately in two parcels. He said that he gave the parcels containing the blood‑stained earth and the empties recovered from the spot to Shah Muhammad Constable on 3rd of February 1968. Shah Muhammad Con stable (P. W. 3), however, stated that he received three parcels on 3rd of February 1968, from Moharrir A. S. I. Sabir Hussain and delivered two of them in the office of .the Forensic Laboratory while one was delivered in the office of the Chemical Examiner. If what Sabir Hussain has stated is correct, then the whole story of recovery of the gun and pistol on 5th of February, 1968, falls down. The gun and the empty were delivered to Sabir. Hussain for safe custody on 3rd of February, 1968. The argument of the learned counsel that there was a possibility that the empty was fired from the gun before the gun and the empty were consigned in the Malkhana on 3rd of February 1968, does not appear to be without substance. The evidence of recovery according to us, therefore, does not‑corroborate the eye‑witness account.

22. As to the incident of arson, it is not known as to how the kerosene oil and the kassi were taken to the roofs of the witnesses. There is no evidence whatsoever to indicate as to which of the accused was carrying it. Lal (P. W. 18) stated that he did not know as to which of the accused was holding the kerosene oil and who had the kassi. Mst. Saidan stated that her roof had been dug out to the size of a cot whereas A. S. I. Sabir Hussain states that the place covered by two or three rafters had been dug out and the rafters had also got fire to some extent. Nazir P. W. was not able to say whose roof was set on fire first and by which of the accused. He said that the accused had climbed the roof through his stairs but Nawab son of Hakim was not able to say through which stairs the accused climbed the roof. Nazir was not able to say on which roof the tin containing kerosene oil was left and whether it contained any oil or not. In our view, the story of burning of the roofs was introduced to show that the witnesses had a full view of the criminals. It is to be pointed out that no burnt rafters were taken into possession by the police. The charge of arson against the " appellants, therefore, also stands unproved.

23. The result is that we, allow this appeal and set aside the conviction of the appellants on all the counts as well as sentences passed upon them. They shall be set at liberty, forthwith unless they are lawfully required to be detained In connection with some other case. The sentence of death passed on Latif appellant is not confirmed. The murder reference is also answered accordingly. Appeal allowed,