1988 PLP 174 (MLD)

I have heard the learned counsel for the appellant, learned counsel for the State, learned counsel for the complainant, and have also gone through the R & P of the case. It was contended by the learned counsel for the appellant that the case was false and the appellant was implicated due to enmity. That the ocular testimony was interested, inimical and unreliable specially because the incident took place in a thickly populated area but not a single independent witness was cited or examined by the prosecution. It was further contended that the Mashirs of arrest and recovery belonged to a far‑off place. and i hey were closely related to the deceased. Even the F.I.R. shows that appellant was armed with a revolver with which he fired, at they deceased but four pellets were recovered from the dead body. Moreover the place of recovery was not in exclusive possession of the appellant and therefore no reliance could be placed on recovery. That the investigation was dishonest inasmuch as the S.H.O. had all along been trying to select Mashirs who were related to the complainant party, and the F.I.R. was not recorded so promptly as it is shown. In support of his contentions he has relied upon 1980 S C M R 225. 1983 S C M R 1, 1986 P Cr. L J 583 and 1975 P Cr. L J

750. The learned counsel for the State has contended that the F.I.R. was promptly recorded in which names of the accused and the role played by them was specifically mentioned. That there was evidence of three eye‑witnesses which was corroborated by recovery of pistol from Lal Bux and the report of Ballistic Expert and medical evidence. He has further contended that the complainant had no enmity with the appellant so that he could be implicated falsely, and on the other hand the accused had a motive to kill deceased Nazar Muhammad. The learned counsel for the complainant has adopted the arguments of the learned counsel for the State, and has further contended that there was no enmity between the complainant and the appellant, and therefore, there was no question of false implication. He has further contended that the relations between the parties were of course strained, but not to the extent that the accused could be implicated in the false case. He has further contended that father of Mst. Iqbal died leaving no male issue and therefore father of Lal Bux took possession of the entire land and as such Mst. Iqbal had filed a suit for her share. As far as the ocular evidence is concerned, it consists of evidence of complainant Ali Gohar who has supported the contents of F.I.R. with some variation with regard to the nature of weapon and as to how he and the two eye?witnesses reached at the place of incident. ??????????? So far P.W. Sikandae Ali was concerned, he has deposed that deceased Nazar Muhammad was his elder brother so also the complainant. On 12‑10‑1985 at about 7‑30 p.m. his brother Nazar Muhammad was standing with push cart in front of Keenjhar Hotel. He, his brother Ali Gohar and P.W. Adam Khan were sitting near Nazar Muhammad on footpath. At that time accused Lal Bux and Anwar who were cousins of Mst. Iqbal wife of deceased Nazar Muhammad came there. Accused Lal Bux was armed with country‑made pistol while Anwar was empty handed. Accused Lal Bux challenged Nazar Muhammad that he had troubled his father over matter of land, and that they will not spare, and fired at him which hit him on the left side of his back and he fell down, and thereafter, the?? cused ran away. He and Adam Khan had remained at the dead body, while complainant went and brought police to the Wardat. He has supported the complainant on the point of motive. In cross‑examination he has stated that he had no work with Nazar Muhammad. He, Adam Khan and Ali Gohar had not gone together to Wardat, voluntarily stated that Adam Khan had come first, then he went and sat with him, and after him came complainant Ali Gohar. He denied a suggestion that he had stated in 161, Cr.P.C. statement that he, Adam Khan and Ali Gohar had gone to the Wardat together. According to him, he had reached Wardat about 10 minutes before the incident took place. He has admitted a suggestion that accused Anwar was not party to the suit filed by Mst. Iqbal against Abdul Karim . The people who were sitting at the hotels and the adjoining shops had seen the incident or not but they were attracted on gun shot reports and came to us. They did not narrate the facts of the incident to the people who came at the Wardat. P.W. Adam Khan works as labourer. He denied a suggestion that P.W. Adam Khan worked as labourer at the hotel of Ali Gohar. P.W. Adam Khan has deposed that he resides at Lahori Mohallah, Larkana. He knew the parties. About one or one and half years back he was sitting on a stool near deceased Nazar Muhammad. Complainant and P.W. Sikandar were also sitting with him. Deceased Nazar Muhammad was standing with push cart and was selling peanuts in front of Keenjhar Hotel. At that time accused Lai Bux and Anwar came there. Lai Bux challenged Nazar Muhammad that he had troubled and tortured his father and they will not spare him. Then Lai Bux fired pistol shot at Nazar Muhammad which hit him on his back and thereafter the accused ran away. In cross‑examination he deposed that deceased Nazar Muhammad was his friend. He (witness) had gone on work on the day of incident but did not remember on whose work he had gone on that day. He also did not remember as to where he had worked on that day. He used to visit the hotel of Ali Gohar, and 2‑3 times he had also worked on the hotel. He had no work with Nazar Muhammad on that day. He had gone to his house at about 5‑00 p.m. and went to the Wardat at 6‑30 p.m. The pistol was fired at the deceased from the distance of nine inches. None from the locality helped them in removing injured Nazar Muhammad from Wardat to hospital. Dr. Dost Muhammad who had carried on post‑mortem on dead body of deceased. Nazar Muhammad has deposed that on external examination he found the following injuries on the person of the dece4sed. (1)??????? Nine lacerated punctured wounds each about half c.m. in diameter over back of left side chest (charring absent, entry wounds). On external examination he found the following damage:‑ Posterior wall of thorax ruptured‑‑Left pleura reptured, Left lung ruptured‑‑Heart ruptured‑‑Blood vessels of left side ruptured‑Stomach was empty and healthy. From the external as well as internal examination he was of the opinion that the death of the deceased occurred due to shock and haemorrhage due to injury No. 2 caused by fire‑arm (four pellets recovered from the body of the deceased). The injury was sufficient in the ordinary course of nature to cause death. The time between the injury and death was few minutes and between the death and post-?mortem was about five hours. He has produced the post‑mortem notes as Exh.

12. I have considered the contentions of the learned counsel. As far as the ocular evidence was concerned, complainant Ali Gohar is brother of deceased. Nazar was their friend. He has also admitted that he had also worked at the hotel of complainant Ali Gohar twice or thrice. The evidence of Tapedar Noor Muhammad P.W. 5 shows that there were shops, hotels and houses near the place of incident. It has been admitted by the complainant that several people were sitting at the hotels at the timc of incident. He has also admitted that several people belonging to different castes had assembled at the Wardat after the‑accused had runaway. They had seen the incident themselves, and therefore, he did not narrate the facts of incident to them. The evidence of complainant is that complainant Ali Gohar, P.Ws. Sikandar and Adam Khan had no specific work with the deceased or at the place of incident and therefore I agree with the learned counsel for the appellant that the complainant and the two witnesses were the chance witnesses specially because the complainant used to run a hotel at Bus‑Stand Larkana and the buses and wagons used to come at Bus Stand Larkana upto 10‑00 p.m. and, therefore, his assertion that he used t01 close the hotel at 6‑00 p.m. appears to be unnatural. Likewise, P.W. Sikandar Ali and Adam Khan no reason try be present at the place of Wardat at the time; of incident. P.W. Adam Khan has specifically stated that he had no work with Nazar Muhammad on the day. It is the case of the prosecution that Mst. Iqbal wife of deceased Nazar Muhammad had filed a civil suit against Abdul Karim father of accused Lai Bux for her share of land and therefore there can be no doubt that the relations between the parties were strained. The F.I.R. shows that the complainant and the two witnesses had gone together to Nazar Muhammad but in the Court the case of the complainant is that Adam Khan reached first, complainant reached about 8 minutes before the incident, while according to Sikandar he reached about 10 minutes before the incident, and complainant reached after him. In the F.I.R. no overt act was assigned to co‑accused Anwar (since acquitted) but in the Court it was alleged by the complainant that they challenged Nazar Muhammad that he had created trouble for father of Lai Bux over land, and that they will not spare him. This statement of the complainant has not been accepted by the trial Court and therefore co‑accused Anwar was acquitted. Even the F.I.R. was not lodged promptly as alleged, which is clear from the admission made by the complainant that "after visiting Wardat the police recorded his F.I.R. The case initially set up before the police was that appellant Lai Bux was armed with a revolver but in the Court the complainant and P.Ws. have deposed that accused was armed with a pistol. This subsequent improvement appears to be due to the reason that according to the Medical Officer four pellets were recovered from the body of the deceased. In view of the circumstances, the evidence of complainant and eye‑witnesses was not such which could be relied upon implicitly without strong corroboration. In this connection reliance, is placed ors 1983 S f' M R I and P

1. D 1985 S C

11. Adverting to the evidence regarding recovery, the Mashirs of arrest and recovery were related to the deceased inasmuch as Mashir Abdul Wahab is son?-in‑law of deceased, while Lai Bux is brother‑in‑law of deceased. Mashir Lai Bux was an accused in murder case of one Kauro, in which co‑accused Anwar was witness against him. The complainant has also admitted that Mashir Lai Bux and Abdul Wahab are sons of his cousin. That the daughter of deceased Nazar Muhammad namely Mst. Irshad was married with Mashir Abdul Wahab. The two Mashirs Abdul Wahab and Lai Bux were residents of Bakrani village which was situated 7 miles away from Larkana Town as admitted by Mashir Sachal who also belonged to the same village. Moreover, there was an important contradiction in the evidence of Mashir Abdul Wahab and S.H.O. inasmuch as according to Mashir Abdul Wahab he and Lai Bux had come to the bus stand Bakrani about five minutes before the police came there. They were waiting for the bus in Park near Petrol Pump. Police arrested the accused from a bus about 60/70 paces away from them. The moment police apprehended the accused and he was being taken out of the bus they reached there. According to him other persons were also present at the Bakrani Bus Stand, at Hotels, and some were waiting for the bus. According to A.S.I.P. Abdur Rahim accused Lai Bux was standing at bus stand and was waiting for bus when Ali Gohar complainant saw him all of a sudden and pointed him out to him. On seeing them accused tried to run but they did not allow him to move even, and arrested him. According to him, they did not apprehend the accused Lai Bux from inside the bus. He has further stated that complainant Ali Gohar had pointed out the two Mashirs to him as his caste‑ fellows and he made them as Mashirs. On verifying particulars from Mashirs Abdul Wahab and Lai Bux he came to know that none of them wits resident of Larkana Town. From the above discussion it is clear that on the one hand the Mashirs were interested, and they came from the distance of about 7 miles from the place of arrest and recovery. There was serious contradiction in the evidence of Mashir Abdul Wahab and A.S.I.P. regarding the manner in which the appellant was arrested. It was contended by the learned counsel for the appellant that the empty was secured from the Wardat on 12‑10‑1985 while the pistol was allegedly recovered from the appellant on 21‑10‑1985, till then the empty was not sent to the Ballistic Expert, and therefore, no reliance could be placed on recovery even on this score alone. In this connection the learned counsel has relied upon P L D 1987 Lah. 505 and 1986 P Cr. L J

583. In the case of Bashir Ahmed v. The State P L D 1987 Lah. 505 it was observed that:‑ "In so far as the recovery of two empties from the spot was concerned, suffice it to say that although these were deposited in the Malkhana on the day of occurrence i.e. 31‑7‑1981 but were sent to the expert on the day, the gun was recovered i.e. 3‑8‑1981 and the same day, its parcel had reached on 11‑8‑1981. True, the empties and the gun were not sent together, nevertheless, they been sent a day earlier, then the position may have been different. Under the circumstances, the positive report of the expert was of no help to the prosecution." In the case of Janib and 2 others v. The State 1986 P Cr. L J 583 while concurring with the learned trial Judge who had ruled out of consideration the evidence of recoveries. It was further observed that:‑ "On the contrary there are additional reasons for not accepting the evidence of recoveries. The recoveries were made in presence of Mashirs who are not only related to the deceased but also did not belong to the locality where blood‑stained hatchets were secured." As far as the evidence of S.H.O. on the point of recovery was concerned, no reliance can be placed on the same, as conduct of the S.H.O. was not above board. The evidence of complainant shows that the S.H.O. had recorded the F.I.R. after visiting Wardat. According to S.H.O. the appellant was pointed out to him by complainant Ali Gohar at the time of arrest but complainant Ali Gohar has stated. that he was not present with the S.H.O. when the appellant was arrested. There was a serious contradiction between the evidence of Mashir and S.H.O. regarding the manner and place of arrest of the appellant. The empty was not sent by the S.H.O. to the Chemical Examiner till the pistol was recovered. That the S.H.O. selected Mashirs who were related to the complainant and came from a distant place. The incident had taken place in the city but he did not examine any independent person having shop, Hotel or House near the place of Wardat. As far as the evidence of motive was concerned, the land was in possession of father of the appellant, and the suit filed by Mst. Iqbal and another was pending since long. There was no immediate cause for the appellant to cause 1 death of deceased Nazar Muhammad. Moreover, the enmity is a double‑edged weapon ‑and if it could be motive for committing murder of Nazar Muhammad it could very well be a motive for false implication of the appellant as held in P L D I 1981 Kar. 1. ?In view of the above discussion, I am of the considered view that the prosecution had failed to prove its case against the appellant beyond reasonable doubt, and therefore, the appeal is allowed, conviction and sentence of the appellant are set aside, and he is acquitted of the charge. He shall be released forthwith if not required in any other case. M.Y.H./L‑18/K?????????? Appeal allowed.