1980 P Cr (PLP)

Z. A. CHANNA, J.‑The two appellants were tried alongwith one Ghulam Nabi, brother of appellant Gul Hassan, by the learned Sessions Judge, Jacobabad, in respect of offences under sections 302 and 307, both read with section 34, P. P. C. for committing murder of one Muhammad Khan and attempting to commit murder of a tonga driver, by name Mughul, by means of fire‑arms. Both the appellants have been convicted for above offences, while their companion, Ghulam Nabi, was acquitted. Appellant Lakhmir was awarded death sentence for the offence under section 302/34, P. P. C. while appellant Gul Hassan for the said offence has been sentenced to imprisonment for life. Both the appellants have further been sentenced to imprisonment for three years for the offence under section 307/34, P. P. C. Additionally, each of them has been sentenced to pay a fine of Rs. 500, or in default to undergo R. 1. for six months. Appellant Lakhmir has also been convicted under section 13(d) of the Arms Ordinance and sentenced for the said offence to R. I. for two years. The appellants have come up in appeal to this Court against their convictions and sentences. The incident which has given rise to the present appeal occurred in the city of Jacobabad on 9‑10‑1975. It is alleged that first informant Ahmad Khan and his brother, deceased Muhammad Khan, who had gone to Jacobabad for the purpose of business, came to the bus stand for the purpose of returning to their village, when at about 11‑30 a.m. the two appellants, of whom Lakhmir is said to have been armed with a gun, while appellant Gul Hassan‑ carried a lathi, turned up alongwith acquitted accused Ghulam Nabi, who was armed with a pistol. According to the F. I. R., which was lodged at the Jacobabad City Police Station at 11‑45 a.m. that is, 15. minutes after the occurrence of the incident, appellant Lakhmir and acquitted accused Ghulam Nabi fired at deceased Muhammad Khan, who fell down. The incident was witnessed by Ahmed Khan, Sanwlo and the driver of the tonga in which the two brothers had come to the bus stand. In the firing tonga driver Mughal also sustained gunshot injuries. After firing at the deceased and tonga driver, the appellants and their third companion ran away. The shots were heard at the Jacobabad City Police Station, which was two to three hundred paces away from the scene of offence, and A. S.

1. Fakir Muham mad accompanied by P. C. S. Karimdad and Muhammad Saleh chased the assailants and managed to apprehend the two appellants in the Gharibabad Muhallah, at a distance of 3‑4 furlongs from the scene of offence. It is stated that appellant Lakhmir had a single barrelled gun and 4 live cartridges, which were secured, while from appellant Gul Hassan a lathi was secured. The third culprit, Ghulam Nabi, managed to make good his escape in the crowd. The two appellants were brought to the police station, where in the meanwhile first informant Ahmad Khan had filed his report. The investigations in the case were conducted by S. H. O. Abdul Fateh. After recording the F. I. R. of Ahmad Khan he accompanied the latter to the scene of offence where he found P. W. Mughul lying injured on the ground. The S. H. O. recorded his statement and sent him to the hospital for examination and treatment. The S. H. O. thereafter prepared a memo of the vardat from where he secured two crime empties and blood‑stained earth. He next prepared inquest report in respect of Muhammad Khan who was lying dead at the vardat. Thereafter the dead body of Muhammad Khan was sent to the Medical Officer for autopsy. The S. H. O. also found P. W. Sanwalo at the vardat. He recorded statement of Sanwalo. On returning to the police station, the S. H. O. found that A. S. I. Fakir Muhammad had apprehended the two appellants and brought them to the police station. He recorded the statements of A. S. I. Fakir Muhammad P. C. Karimdad and P. C. Muhammad Sallah. The gun secured from appellant Lakhmir was sent to the Ballistic Expert alongwith the two Crime empties recovered from the vardat. The report of the Ballistic Expert is to the effect that these two crime‑empties had been fired from the same gun. On completion of the investigation the case was challaned. The defence of the appellants is complete denial. According to them they have been falsely implicated in the case due to enmity with the complain ant party. It may be stated here that some 8 or 10 years. prior to the present incident, one Gujan, who is stated to be the brother of appellant Lakhmir and a relative of appellant Gul Hassan and acquitted accused Ghulam Nabi, was murdered and for his murder Sanwalo and Khio were tried but acquitted. This murder, it is stated, is not only the cable of enmity between the parties but has triggered .the present incident. We have heard Mr. Muhammad Hayat Junejo, the learned Advocate for the appellants, and we have also had the benefit of the arguments of Mr. Ghulam Ali Agba, who appeared for the Advocate‑General. We find that there are the following pieces of evidence against the appellants :‑ (a) Ocular testimony. of P. Ws. Ahmad Khan and Sanwalo. (b) The strong corroborating circumstances of the two appellants being apprehended at the spot and a gun ~ having been secured from the possession of appellant Lakhmir. (c) The report of the Ballistic Expert to the effect that the two ~ crime empties found at the vardat had been fired from the gun said to have been recovered from the appellant Lakhmir. (d) The medical evidence showing that both the deceased and P. W. Mughul had sustained gunshot injuries. (e) Evidence regarding motive, namely the previous murder of Gujan. We have closely examined the evidence of the two eye‑witnesses but we find that their evidence does not inspire confidence. As regards P. W. Sanwalo, though his name transpires in the F. I. R. which as stated earlier was lodged within 15 minutes of the incident, the admitted position is that Sanwalo resides 35‑40 miles away from the seen.‑ of offence and has given no satisfactory explanation for his presence at the scene of offence. According to him he had gone to the city of Jacobabad two or three days previously for the purpose of business and making purchases and had gone to the bus stand for returning to his village when the incident occurred. He, however, admitted that he had made no purchases at Jacobabad despite his stay in the city for 2‑3 days. He claims that he was residing in Jacobabad with Karim Bux who, however, was not examined. Moreover, it has not been established that the 161 statement of this witness was recorded at any time. Though in his examination‑in‑chief the witness has stated that his police statement was recorded and S. H. O. Abdul Fatah has also testified that he had found Sanwalo at the scene of offence and recorded his statement there, in his cross‑examination P. W. Sanwalo has stated that he does not remember if the police had recorded his statement. More positive evidence is forthcoming from A. S. I. Fakir Muhammad who has categorically stated that 161, Cr. P. C. statement of Sanwalo was not recorded at all. In regard to the incident itself, P. W. Sanwalo's evidence is contradictory and unreliable. He has testified that appellant Lakhmir fired at the deceased who fell down and thereafter appellant Ghulam Nabi fired at him. However, no witness has stated that the deceased was fired at after he had fallen down. The extent to which P. W. Sanwalo has departed from the truth is shown by the fact that he has claimed that after the deceased had fallen down in consequence of being hit by the fire‑arm shots, appellant Gul Hassan had given 2‑3 lathi blows to the deceased. However, the medical evidence belies him and indicates that no injuries with a blunt weapon were caused to the deceased. The most important eye‑witness in the case is tonga driver Mughul who had brought the deceased to the bus stand. He, however, has not supported the prosecution case at all. While he has testified that three persons armed with guns had fired at the deceased and thereafter had run away, and in consequence of their indiscriminate fire he also had sustained gunshot injuries, he has very categorically stated that the accused present in Court are not the persons who had attacked the deceased. There remains the evidence of first informant Ahmed Khan. No doubt he has testified that the two appellants and acquitted accused, Ghulam Nabi, had attacked the deceased near the bus stand i n the city of Jacobabad, and after appellant Lakhmir and the acquitted accused, Ghulam Nabi, had fired and hit the deceased respectively with their gun and pistol, the three culprits ran away. but we are not much impressed with his evidence. In the first place since the first informant and the deceased apparently decided suddenly to return to their village, it is not known how the appellants acquired knowledge of their movements and their desire to return to their village so that they could wait for them and attack them at the bus stand. Even if we assume that the meeting between the appellants and the complainant party was a chance one, then also we are unable to place reliance on the evidence of Ahmad Khan as the account of the incident which he has given is full of contradictions and is not a consistent one. According to the first informant, he had purchased Biris, Gur and other provisions at Jacobabad city but neither he produced those articles before the police nor do we know what happened to them. Again, whereas according to him both Lakhmir and Ghulam Nabi had fired twice at the deceased, he was con tradicted on this point by P. W. Sanwalo who states that appellant Lakhmir ?tad fired first at the deceased and after the deceased had fallen down appellant Ghulam Nabi fired once at the deceased. The evidence of both these witnesses is also at complete variance with the evidence of the third eye‑witness, Mughul, whose presence at the scene of offence cannot be doubted by reason of the fact that he had sustained gunshot injuries. Accord ing to P. W. Mughul all the three culprits had guns and each of them had fired at the deceased. Another circumstance which casts the shadow of doubt on the testimony of P. W. Ahmad Khan is that whereas according to him neither he nor the deceased had partaken of breakfast before the incident, according to the medical evidence semi‑digested food was also found in the stomach of the deceased. This would indicate that the deceased had taken food 2‑3 hours before the incident. In other words, the deceased had taken breakfast between 8‑30 and 9‑30 a.m. The most important piece of evidence against the appellants, however, is that they are stated to have been apprehended at the spot. Evidence on this point has been given by A. S. I. Fakir Muhammad and P. C. Karimdad. They have further testified that from appellant Lakhmir they had secured a gun and 4 cartridges while from appellant Gul Hassan they had secured a lathi. We find their evidence highly improbable. Although according to the F. I. R. the scene of offence was ` or 3 hundred paces away from the police station, according to P. C. Karimdad the station was at a distance of two furlongs from the scene of offence. More over, according to S. H. O. Abdul Fatah, he had sent A. S.. I. Fakir Muhammad and P. Cs. Karimdad and Muhammad Sallah to pursue the culprits some 10 or 15 minutes after the gunshots were heard. Apart from the fact that it is unlikely that the assailants of the deceased, after firing the gunshots at the deceased, would have cared to tarry at the scene of offence, according to the eye‑witnesses themselves the culprits ran away immediately after firing the shots. A. S. I. Fakir Muhammad and P. C. Karimdad have admitted that they first went to the scene of offence and there. after they chased the culprits. If these three Police Officers had started from the police station 10 to 15 minutes after hearing the gunshots and they had there after to coffer two furlongs in order to reach the scene of offence, we do not see how they could have found the culprits at or near the scene of offence in order to chase or pursue them. Very likely by the time the police officers came to the scene of offence, the culprits must have been at a very safe distance from the scene of offence. The story thus of the three Police Officers that they found the culprits at a few yards from the scene of offence arid after a chase they apprehended them at a distance of 3/4 furlongs from the scene of offence appears to be highly improbable and not based on truth. Another circumstance which casts doubt on the story of the chased and capture is that whereas admittedly the locality where the incident occurred was a crowded one, there being shops, bus stand, cattle piri and other places of business all around, not a single witness of the locality has been examined in support of the story of purguit and capture. Even the mashirs of the recovery of gun and lathi from the two appellants were not from among the public but. the two constables, Karinidad and Muhammad Sallah, who were made to act as mashirs, indiratitig that either no public person way available at the place of capture or no person from the public was willing to act as mashir. Apart from the fact that the A. S. I. has not stated that no public man was willing to act as mashir to the securing of the weapons from the two appellants, the unwillingness of private persons to act as mashirs would be improbable since the police had secured mashirs from the public in this very case in regard to the inspection of the scene of offence and recovery of crime‑empties from the scene of offence. Another circumstance which makes the version of the chase and capture improbable is that A. S. I. Fakir Muhammad was 45 years of age whereas the appellants are young men in their twenties. We find it difficult to believe that in spite of the fact that the culprits had a long start or rather aged police officer was able to run so fast as to capture them. Coming next to the report of the Ballistic Expert, though it is to the effect that the two crime‑empties allegedly recovered from the vardat had been fired from the gun allegedly recovered from appellant Lakhmir we are neither satisfied on the point of the recovery of the two crime empties from the vardat nor in regard to the recovery of a gun from the possession of appellant Lakhmir. Both the mashirs of the scene of offence, namely Kadir Bux and Muhammad Pariah, have denied that any crime‑empty was recovered from the scene of offence. Furthermore, neither there is any mention in the F. I. R. about any crime‑empties being at the vardat nor even does the inquest report make mention of there being any crime‑empties at the vardat. The evidence in regard to the alleged recovery of crime empties from the scene of offence thus is highly doubtful. As regards the evidence regarding the recovery of a gun from appellant Lakhmir, as already pointed out, there is on this point only the evidence of the two Police Officers, A. S. I. Fakir Muhammad and P. C. Karimdad. Despite the fact that the chase and the capture are stated to have occurred in a crowded locality, even no mashirs from the public were secured in regard to the alleged recovery. Moreover, according to tonga driver Mughal, whose presence at the scene of offence cannot be disputed, the culprits, while escaping, had left behind a gun at the scene of offence. He is corroborated on this point by the two mashirs of the vardat, Kadir Bux and Muhammad Pannah, both of whom have testified that a gun was found at the scene of offence. There is no evidence to show that this gun belongs to appellant Lakhmir. As such, we consider that the evidence of the Ballistic Expert does rot advance the prosecution case. Coming next to the medical evidence, all that it establishes is that both the deceased as well as P. W. Mughul had sustained gunshot injuries and that in all probability more than one gunshot had been fired at them. The medical evidence thus lends no great support either to the testimony of the eye witnesses or the version of the chase and capture of the appellants and recovery of weapons from them. Moreover, as already pointed out, the medical evidence contradicts first informant Ahmad Khan on the point that neither he nor the deceased had breakfasted before the incident. There remains only the evidence in regard to the motive. Motive however strong, cannot lend support to evidence which is inherently weak or unreliable. Moreover, in. the present case, the motive seems to adversely affect the case of the prosecution. The grievance of the appellants was no against deceased Muhammad Khan but against Sanwalo who was challaned for the murder of Gajan, brother of Lakhmir: If Sanwalo himself was present at the scene of offence, as stated by him, it is not understood why the appellants spared him and instead killed the deceased who was no involved in the murder of Gajan. If, therefore, Muhammad Khan was murdered on account of the earlier murder of Gajan, then the present of Sanwalo at the scene of offence will have to be wholly discounted. For the reasons discussed by us above, we are of opinion that the prosecution case against the two appellants is not free from reasonable doubt. We accordingly give the appellants the benefit of this doubt, accept their appeal and acquit them. If they are not required in any other case they should be released forthwith. The reference made by the learned Sessions Judge for confirmation of the death sentence awarded by him to Lakhmir stands rejected. Appeal allowed.