1988 P Cr (PLP)

Hashim P.W. whose mother is the cousin of the deceased after coming across Shah Alam P.W. and narration of the incident to him with instructions to inform the Police Leavy Post Bhagawal proceeded W. the said post. Mohammad Ramzan F.C. (P.W. 10) deputed Rustam Sepoy with Hashim P.W to P.S. Hathiala, where Hashim P.W. informed Ashiq Jan H.C. (P.W.il) about the murder of the deceased who onward informed S.H.O. P.S. Kulachi about the occurrence on telephone. On receipt of information Abdul Aziz Khan, S.H.O. (P.W.12) proceeded to the spot, where he found the complainant as well one official from S.P.L. Bhagawal already present. He recorded Murasila Exh.P.A./1 and sent the same to P.S. for registration of case. He prepared injury sheet and inquest report and despatched the dead body to mortuary under escort for autopsy. He recovered a spent bullet stuck in the bottom of trouser of the deceased took the same into h1s possession. He further recovered blood-stained earth from the spot which he packed and sealed into parcel. He recovered four empties of 303 bore, two empties of 7 MM, one empty of .32 bore pistol and another empty of .32 bore pistol, all giving smell of fresh discharge from the spot. He also recovered three live cartridges of 303 bore, one spent bullet and one live cartridge of .12 bore shotgun and two card boards discs from the spot. He had taken into possession the cycle and two tins of milk. The complainant had produced .12 bore D . B . Shotgun with a bandolier and a purse carrying notes of the deceased before the I.O. which he also took into possession. The butt of the shotgun was damaged as hit by a fire shot during the course of incident. The I.O. had also taken into possession a shotgun from one Kalo, the father of the accused Sher Zaman and Mr. Zaman along a copy of the licence. During the house search of one Sharaf Din of Garrah-Mohabbat, SB shotgun with bandolier and a copy of licence in the name of the Nasir were further taken into possession by the I.O. The blood-stained clothes of the deceased and a sealed phial containing bullets recovered from the dead body were produced before the I.O. which he took into possession and sealed the same into a parcel. The blood-stained clothes and earth were sent to laboratory, wherefrom the report of Chemical Examiner was received which was placed on file.

2. Dr. Jehanzeb (P.W.15) had conducted the autopsy on the dead body of the deceased aged about 46 years on 14-6-1984 at 3-30 p.m. and found some eight inlet wounds and eight exit wounds on different parts of the body. Six inlet wounds were report in a size of 1/2" x 1/2" each and one inlet wound was reported in a size of 3/4" x 3/4" while size of one inlet wound was not given. There were found eight exit wounds in different sizes from 1/2" x 1/2" upto 1?" x 1?". Ribs, pleurae, lungs, pericardium, liver and heart were injured. Death had caused due to injuries to the vital organs like heart, lungs and liver. Time between injuries and death was given 15 minutes to half an hour and that between death and P.M. examination was given eight to ten hours.

3. Since the accused had made themselves scarce soon after the occurrence, there were issued search warrants against them under section 204, Cr.P.C. which were returned unserved. Afterwards there were issued proclamations against the accused which were duly served. The accused had surrendered their arrest some six and a half months after the occurrence stating that they had gone to Karachi for labour and then to Khuzdar in Baluchistan for falcon trapping and when returned, they had known of the occurrence culminating into charge of murder against them, as such, they had accordingly surrendered their arrest.

4. There was stated a motive in the F .I . R . that a week prior to the occurrence Ghulam Yasin P.W. and Ghulam Yasin accused had altercated with each other during labour job when the complainant and Ghulam Yasin P.W. had given beating to Ghulam Yasin accused with kicks and fists and that the said quarrel was scheduled to be patched up through family settlement on the day of occurrence when c before the said settlement the accused had killed the deceased. However, at the trial the complainant did not say a word about the motive advanced in the F.I.R. and only stated that the deceased was murdered on account of old enmity. His uncle Mohammad Jan P.W.S` stated that the uncle of Sher Zaman and Mir Zaman accused was murdered for which he and the deceased were charged but he claimed that the said matter had been compromised.

5. To bring home charge to the accused the prosecution furnished the ocular evidence in the statements of Shah Alam P.W. 6 and Attaullah P.W. 7 and in corroboration of their testimonies reliance was placed on the medical evidence reporting multiple injuries of different dimensions sustained by the deceased, extraction of pieces of bullets from the dead body and recovery of empties and bullets of 303 bore, 7 MM and .32 bore rifles and pistol respectively from the spot, all to suggest that the deceased was put to death as a result of fire shots of rifles and pistol. The longer unexplained abscondence of the accused over a period of six months was also employed in corroboration as pointer to their guilt. The delay in the F.I.R. was explained through the statements of Hashim and police personnel of SPL Bhagawal and P.P. Hathiala. On the other hand the defence claimed that it was unwitnessed occurrence and that the accused were charged on suspicion due to enmity after consultation and deliberation and that inordinate delay in making the report was utilized to cook out a prosecution story but even then falsehood having no legs to stand on was highlighted by the medical evidence and the recoveries from the spot to contradict the so-called ocular evidence.

6. To begin with an F.I.R. in a cognizable offence when reported is to be immediately recorded by the Officer Incharge of a Police Station. Instantly Hashim P.W., a close relation of the deceased was narrated the incident by Shah Alam with instructions to inform the police but on his arrival at SPL Bhagawal and P.P. Hathiala he simply informed the said Police Posts about the murder of the deceased and did not name the accused as murderers. In the context reference is made to the statement of Mohammad Ramzan H.C. SPL Bhagawal who unequivocally stated that Hashim P.W. only told him this much that Malik Wadan, the deceased has been murdered on the road between Garrah Mohabbat and Bhagawal and that he has come to him for information. So Ashiq Jan P . W . , H . C . Incharge P.O. Hathiala stated that he was informed by Hashim P . W . about the murder of Malik Wadan deceased on Bhagawal and Garrah Mohabbat Road and that he onward informed S.H.O. P.S. Kulachi regarding the occurrence on telephone. No formal report was recorded at either of the police, posts. About the timing of occurrence it was stated that the complainant party started on foot from Garrah Mohabbat at sunrise time i.e. 5-15 a.m. The site plan shows the place of occurrence at a central point between the Leavy Post Bhagawal and village Garrah Mohabbat. The complainant stated the Bhagawal Leavy Post to be at a distance of one or one and a half miles from the place of occurrence. The complainant party had thus travelled a distance of a mile or one and a half miles when the occurrence took place and the said distance could be conveniently covered in an hour's time. The time of occurrence has been recorded in the F.I.R. as 7-00 a.m. but it appears to be an occurrence before the said time as Hashim P.W. was met by Shah Alam complainant after the occurrence at about 6-45 a.m. He had onward proceeded to SPL Bhagawal at a distance of one or one and a half miles. Mr. Ramzan H.C. Bhagawal stated that Hashim P.W. reached there at 7-15 a.m. Attaullah P.W. stated that the people from Bhagawal Leavy Post came to the spot at about 7-00 a.m. and that regular police of P.S. Kulachi arrived at the scene of occurrence at 11-00 a.m.. It is on record that after the occurrence Hashim P.W. was deputed to inform Special Leavy Police Bhagawal at a distance of one or one and a half miles from the spot and that after information the police had arrived from the said post at the spot. The autopsy conducted at 3-30 p.m. reported time between injuries and death 15 minutes to half an hour and time between death and P. M. examination 8 to 10 hours. As such, timing of occurrence is worked out between 5-00 a.m. to 7-00 a.m. The report was lodged to the S.H.O. on the spot on his arrival at 11-00 a.m. i.e. after more then four hours of the occurrence and before that police personnel from Leavy Police Post Bhagawal and Police Post Hathiala had arrived at the spot but no report was made to them nor the assailants were named before them. Inordinate delay in recording F.I.R. and particularly in case of one recorded on the spot by the I.O. on arrival have always been viewed with grave suspicion by the superior Courts in the absence of any plausible explanation. Herein as already stated, assailants have not been named by Hashim P.W. and even by the complainant before the other police personnel on their arrival at the spot prior to the arrival of the I.O.

7. The ocular evidence has been furnished one by a close relation of the deceased also inimically disposed towards the accused and the other by a person from a different village but residing in the house of the deceased as gratis. The eye-witnesses claimed to be on their way for labour. The assailants had been awaiting on the side of the Kacha Road in the bushes and as such, the murder of the deceased has occasioned under a planning. The accused were to bear equal animosity as against the complainant but were not to open fire at him and were content to put the deceased to death only. No other passerby has been produced to have seen the accused decamping from the spot after the incident or to have seen the eye-witnesses present on the spot or to have seen them present at the side of the deceased body immediately after the occurrence. In the circumstances the ocular evidence will be read with care and caution and only accepted if found materially corroborated, particularly by the recoveries and medical evidence.

8. The ocular evidence of Shah Alam and Attaullah has been found inconsistent on the point of second volley of shots fired at the deceased from close range when the accused had allegedly gone closer to the deceased after the first volley of shots fired from the bushes. Attaullah P.W. does not speak about the second volley of shots at all. In the F.I.R. Shah Alam has reported the accused armed with Topaks and pistol. At the trial he does not speak about the specific arms carried by the accused. Attaullah P.W. reported the accused armed with guns in his examination-in-chief. However, in the cross he stated that all the three accused were armed with rifles and that Ghulam Yasin accused was carrying a pistol with bullets. Attaullah P.W. claimed to have mentioned the story about the Hashim's arrival in his statements under sections 161 and 164, Cr.P.C. where, however, it was found omitted. In the site plan the presence of Hashim P.W. has not been shown. The site plan has also not shown the presence of the accused at the time of the second volley of shots from a close range. The P.Ws. have not stated if the deceased was hit at a certain point and that he went ahead and fell down at a different point. The site plan has, however, shown the deceased to have first been hit at point No. 5 and that he had fallen down at point No. 1 at a distance of ten paces. There has, however, not been found any trail of blood between the two places.

9. The recoveries from the spot of two empties of 303 bore at point No.16, one empty of 303 bore at point No.17, one empty of 7 MM at point No.18, one empty of 7 MM at point No.19, one alive cartridge SG Shaheen of .12 bore from point No.21 and two card-board discs from point No.20, all around the places of the presence of the accused at the time of the first volley of shots would report that at the first volley of shots at least three shots of 303 bore, two shots of 7 MM and one shot of .12 bore shotgun were made by the accused. This, is, however, not the case of the prosecution if either of the accused was armed with a shotgun and that a shotgun was fired during the course of incident. There have been recovered two empties of .32 bore pistol from point No.12 at a distance of one pace from the place of the deceased, one empty of 303 bore at point No.13 at a distance of three paces from the place of the murder of the deceased and three live cartridges of 303 bore from point No. 14 at a distance of four paces from the place of the murder of the deceased and a bullet from point No.15 at a distance of two paces from the place of the murder of the deceased. This would suggest that at the time of the second volley of shots there were fired at least two shots of .32 bore pistol and one shot of 303 bore rifle at the deceased from very close range of 1 to 4 paces. There have not been reported corresponding blackening or charring marks around the inlet wounds by the medical evidence. It is accordingly remarked that the recoveries from the spot do not suggest if the occurrence has taken place in the manner as stated at the trial.

10. The medical evidence reports, eight inlet wounds and eight outlet wounds, out of six inlet wounds are in the same size of 1/2" x 1/2" while one inlet wound is in the size of 3/4" x 3/4", which may suggest that the deceased might have sustained the injuries as a result of one and the same kind of fire-arm. There have been reported eight exit wounds corresponding to the eight inlet wounds and still the doctor had recovered five pieces of bullet from the dead body with no specification of parts of the dead body and the same would further render the medical evidence doubtful. As already stated that the medical evidence was not to report any blackening of charring around the inlet wounds and as such, it would speak that the injuries were caused to the deceased as a result of fire shots from a certain distance.

11. Coming back to the recoveries of card board discs and a .12 bore alive SG Shaheen cartridge from the spot and a DB shotgun licensed in the name of the deceased carried by him at the time of occurrence which was hit with a bullet on the butt, a possibility cannot be ruled out that a shotgun has been employed from either side during the course of incidence and that since prosecution does not ascribe shotgun fire to the accused, the shotgun may have been used by the deceased and in that case the occurrence would not culminate into one as stated at the trial.

12. Prosecution has given extra weight to the abscondence of the accused over a period of six months which was attempted by them to explain that they had gone to Karachi for labour and afterwards to Baluchistan for falcon trapping and when returned they surrendered their arrest after learning to have been charged for the offence. The accused did not produce evidence on the point except their solitary statements. Asbcondence is not a substantive piece of evidence and it is always used in corroboration of the other substantive evidence. Hence if the prosecution does not succeed to bring home charge to the accused on the strength of ocular evidence, abscondence by itself could not be employed for the proof of the charge.

13. In view of the aforegoing discussion to occurrence does not seem to have taken place in the manner as stated at the trial. The presence of the eye-witnesses at the time and place of occurrence appears to be doubtful or if present they had not stated the correct version of the incident at the trial. Besides the deceased might have other enemies than the accused as it was suggested to Mohammad Jan P.W., brother of the deceased that he and the deceased were charged for the murder of one Azoor Pasha which he admitted and when further suggested that he and the deceased were charged for the murder of the father of one Azoor the same he did not deny and simply showed his ignorance. He was also suggested that Malik Wadan the deceased was charged for other murders and also theft and decoities which suggestion he denied.

14. That being the position it cannot be said that the prosecution has succeeded to bring home charge to the accused beyond all reasonable doubt and the rule of safer dispensation of criminal justice in extending the benefit of doubt to the accused would be duly applied and accordingly this Court would accept the appeal, set aside the conviction and sentence recorded by the learned Sessions Judge, D.I. Khan vide his judgment dated 13-10-1985 and would order the release of the convicts-appellants forthwith if not wanted in any other case. Criminal Revision for the enhancement of the sentence filed by the complainant stands dismissed having been rendered infructuous in view of the success of the appeal.

15. Before parting, we would also order the return of licensed shotguns to the licence-holders taken into possession during the course of investigation since the same have not been proved rather even not alleged as weapons of offence and the learned Sessions Judge need not have ordered the confiscation of these licensed shotguns to the State. M.B.A./582/P????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.