1973 P Cr (PLP)

(1) A lacertated wound with blackened margin " x 1/3" x tendon deep on the back of upper inter-phalangeal joint of left index finger. (2) A contused wound " x " with black margin (wound of inlet) on the medial aspect of right leg, and contused wound " x " on the lateral aspect of the right leg (wound of outlet). (3) A contused wound 1/3" x " with black margin (wound of inlet) on the antro-lateral aspect of the left leg and contused wound 1/3" x 1/6" on the medial aspect of the left leg (wound of outlet). The middle part of the leg was swollen. According to the doctor injuries Nos. 1 and 2 were simple while the third was kept under observation. All the injuries were caused by firearm. , Mst. Nasim had the following injuries :-- (1) A contused wound 1/3" x " on the back of the heel. The margins of the wound were blacked (wound of inlet) and a contused wound 1/3"x 1/3" on the planter aspect of the heel (wound of outlet). (2) An abrasion " x " on the lateral aspect of the lower part of the left forearm. Both the injuries were declared simple.

6. The appellant was arrested by a Nakabandi party on the night of 10th/ 11th September 1967, and pistol Exh. P: 10 along with 14 live cartridges and an empty Exh. P. 15 was recovered from him. A case under section 14 of the Arms Ordinance was got registered by Muhammad Sadiq A.S.I(. (P. W. 15) at Police Station Malka Hans. The custody of the appellant also the articles recovered by the officials of that police station were subsequently transferred to Police Station, Kabula.

7. Muhammad Sardar Fire-arms Expert reported that of the empties Exhs. P. 1 and P. 7 recovered from near the cot of Farid Khan and Exh. P. 8 recovered from near the cot of Mt. Nur Sain were fired from tile pistol Exh. P. 10 recovered from the appellant.

8. The appellant, when examined by the trial Court, stated that he had been living with his wife but was turned out of the house and that he was falsely implicated in the case. He denied the, motive attributed to him. He denied having fired at the deceased and having caused the death of his brother-in-law and injuries to his wife and daughter. He stated that Farid Khan deceased had illicit relations with the sister of Qada and that accounted for the occurrence. He also denied the possession of the pistol and its recovery. He stated that he was suffering from a disease which had incapacitated him from handling a pistol and from committing such a crime as was attributed to him. He pleaded that it was the disease which afflicted his entire family and in support of his contention before the trial Court he produced his brothers. There was a statement recorded by the trial Court to the following effect :- "I am suffering from the disease which trembles me since my childhood. My brothers also suffer from this disease. They are Goma and Chakar. My mother also suffered with this disease. (At this stage, Goma and Chakar were called in at the report of the accused. They were also found trembling like the accused)."

9. The appellant was represented by a pauper counsel before the trial Court.

10. The trial Court believed the evidence of motive put forward by the prosecution and the eye-witness account of the occurrence, but disbelieved the prosecution case with regard to the arrest of the appellant and recovery of the incriminating pistol from him. For this reason much reliance was not placed on the Firearms Expert's opinion. However, the appellant was sentenced to transportation for life as it was found that Mst. Nur Sain and Farid Khan deceased had no plausible excuse for not satisfying the appellant when he wanted that his wife should go and live with him. The disease from which the appellant was found suffering was also taken into consideration in awarding the sentence.

11. The appellant was personally required to attend the hearing and on being impressed by the gravity of his disease and incapacity, I got him examined by a Medical Board of competent doctors. On receipt of the report I also examined Dr. Munawwar Hayat, Professor of Neurology who was one of the doctors on the Board. The disease has been identified as Huntington s chorea which is a progressive degenerative disease. It is inherited. This explains the fact that his two brothers were also found afflicted and quite likely that his mother too was similarly afflicted. In his present state of health it is unlikely that the appellant could handle effectively a pistol from even a close distance and in any case he could not do so with impunity if he had been surrounded by able-bodied persons. The weapon of offence attributed to the appellant was also called for but a report has teen received that in the meantime it has been destroyed in spite of an order by the trial Court to the contrary.

12. As regards the motive in the case, I find that the prosecu tion hits `hopelessly failed to make it out. In the first information report Mamman (P. W. 3) had mentioned that only a year before the occurrence Mst.Nur Sain had returned to them, that five days,'" before the occurrence the appellant had brought a Panchayat but she had refused to go-with him as she was not favourably disposed towards him and Farid Khan deceased had also refused to let her go. Mamman (P. W. 2) repudiated all this at the trial. The first version is actually more consistent with the appellant's view of the motive. His case was that due to his infirmity and disease his wife and her brothers were not favourably disposed towards him and wanted to bring to an end this marriage and had turned him out of the house. Najja (P. W. 3) being a close associate of the deceased and a resident of the same village and being a servant of their landlord must have known the background of their relationship. He stated "I never saw any quarrel between Sardara accused and Nur Sain P. W. I never saw any dispute or quarrel between the accused and Farid Khan". He also stated that tie had seen Sardara in the village last time only two days before the occurrence and on that occasion he was seen in the house of Farid Khan and Mamman (P. W. 2). He was not at all aware of the strained relations between the parties. There is therefore, no consistent motive attributed which may have prompted the appel lant to do what is ascribed to him. It is probably for this reason that no explanation is forthcoming from the prosecution side as to what prevented Mst. Nur Sain from going with him to his village. The two brothers had joint cultivation and it is not the case that Sardara appellant was substantially helping them out. As the two brothers were living jointly and the elder one was married and had a family Farid Khan's meals could be looked after by that brother and Mst. Nur Sain's presence was not necessary.

13. As regards the actual occurrence there are two sets of witnesses. For the murder of Farid Khan, there are the statements of Mamman (P. W. 2), Najja (P. W. 3) and Bashir (P. W. 4). As regards the second part of the occurrence there are the state ments of Mst. Nur Sain (P. W. 5) Sultan Ahmad (P. W. 6) and Akbar Khan (P. W. 7). Mamman (P. W.2) has admitted that ordinarily they did not water their field at night: What was the occasion to do so on that particular night remains unexplained. Bashir (P. W. 4) is their maternal uncle: He is in a different business. He resides elsewhere in the same village. He had never before so joined them in watering the field. Therefore his presence is extremely doubtful. Najja (P. W. 3) is a servant of Akbar Khan and there is no reason why he should be helping these cultivators. Ordinarily in tube-well irrigation the operator of the tube-well alone along with one person is sufficient to do all that is required to be done. Shera was the tube-well Operator who was said to be on duty.

14. Apart from the persons present the question of identifi cation of the culprit is also not free from doubt. On both the occasions a conspicuous effort has been made to doubly ensure the identity by referring to moonlight and to ascertaining by question the identity of the culprit and on every occasion the culprit dis. closing full particulars and also by attributing to him words which would give an explanation for the crime. There is material discrepancy, in this. For example Najja (P. W. 3) stated that when the appellant was at a distance of four or five Karams from them Mamman asked him who he was. Mamman (P. W. 2) stated that at the time when he questioned the appellant he was at a distance of one Kanal from Them. There is also discrepancy about the number of shots. In the first information report impression was given that only one shot was fired at the deceased and the other at the persons present there. At tie trial two effective shots have been attributed to the appellant corresponding to the two inlet wounds reported by the doctor. Even on this question Najja has gone far beyond by saying that "the third shot was also fired towards us which also hit the deceased. The third shot hit Farid Khan on his back. I saw the pellet travelling when the accused was fired.

15. Both the occurrences show that the victim had been fired at from very close quarters as there was blackening of the wounds. It will therefore mean that the culprit had sufficient time and had come upon the victim unawares. It is unlikely that with these three persons present in the field near the cot and a number of others in the house the culprit would have fired these shots from such a close distance and then made good his escape when there was none other to help him.

16. The most suspicious part of the entire prosecution case is the arrest and recovery from the appellant. Without any purpose and any sequence be is found to be roaming about at night in the limits of adjoining police station armed with an incriminating pistol to be apprehended by the Nakabandi party. One does not know whether it was 6th of September or the 10th of September. The first witness Rashid Ahmad states that he was caught at 2 or 3 a.m., that he was caught in the middle of the bridge, he did not try to run away and that he was walking on a brisk pace but was not running. He says that he had a Jhola which contained the pistol and the cartridges and the Jhola was not produced in Court. Rahmatullah (P. W. 10) another witness of the same event states that the recovery took place at 10 and I1 p.m. He also said that the appellant did not run. Mardan Foot Constable (P. W. 16) stated that the appellant had fired a pistol shot in the air and that he had thrown the bag and the pistol at the bridge. According to some of these witnesses the appellant was taken to Nurpur Adda and was produced before Muhammad Sadiq, A. S. I., while according to Mardan Khan he was taken to Police Station Malka Hans and produced there.

17. The proper custody of the articles recovered has not been proved. On 11-9-67 the three sealed parcels containing the pistol and the live-cartridges recovered from the appellant were kept by Abdul Khaliq H. C. (P. W. 20). He is stated to have handed over these to Muhammad Sharif (P. W. 21) who claims to have carried them to Police Station Kabula and to have deposited it with Mob4rrir Head Constable pa 16-9-67. Anwar Beg the Investigation Officer on the other hand states that he brought the sealed parcels containing the pistol and the cartridges which he made over to Moharrir Head Constable and this must have happened before 16-9-67.

18. There was also recovered a crime empty (Exh. P. 9) from' near the spot, where Mst. Nur Sain was injured. The opinion of the Firearms Expert was not obtained in respect of it. In the circumstances, the trial Court was fully justified in ignoring the evidence of arrest and recovery and the Expert's opinion about the identity of the appellant and the pistol (Exh. P. 10).

19. I find that the prosecution case is not free from reason able doubt and, therefore, accepting this appeal, I set aside the convictions and sentences of the appellant and acquit him of all, the charges. He shall be released forthwith unless required in some other case. Appeal accepted.