1968 SCMR 161 (PLP)

FAZLE-AKBAR, J.-These three appellants, Mehr Ali, Zafar Ali and ljaz Ahmad, were tried under section 302, read with section 34, P. P. C., and section 394, P. P. C., by the Additional Sessions Judge, Lyallpur, upon the allegation that during commis sion of a robbery in Chak No. 121/J.B., Ghokhuwal, District Lyallpur, they committed murders of Kaleem Akhtar and Ehsanul Haq. The Sessions Judge convicted Mehr Ali under section 302, P. P. C. and sentenced him to death and to a fine of P s. 2,

000. He acquitted Zafar Ali and Ijaz Ahmad of the charge of murder He, however, convicted all the three accused under section 394, P. P. C. and sentenced each of them to rigorous imprisonment for three years. On appeal and reference, their convictions and sentences were affirmed by the High Court. The prosecution case briefly was as follows. Ehsanul Haq and his brother had a garden which extended over squares Nos. 44, 56 and 57 in Chak No. 121/J.B., Ghokhuwal, Lyallpur. They lived with their families in the bungalows which were in square No.

56. On the 22nd December 1964, at about 7-30 p.m. Ehsanul Haq armed with a gun, along with his nephew Kaleem Akhtar who had a lathi, went out on a round of their garden accompanied by two servants, Hakim Masih carrying a torch and Patras Masih carrying a hurricane lantern. When they came to Killa No. 17 of square No. 44, they on hearing some noise of persons moving in the garden, called out "who is there" and Hakim Masih flashed his torch. In the light of the torch they saw three persons near a kinnu tree. Of these, one was standing with a gun, the other with a lathi and the third one was plucking kinnus and putting them in a bag. The man with the gun fired a shot at Kaleem Akhtar hitting him on the chest and he fell down dead. Ehsanul Haq went forward and challenged them. He too was fired at and hit in the abdomen. After the second shot the intruders fled away leaving behind a bag half full of kinnus. Hakim. Masih and Patras Masih gave a chase to the intruders, but they escaped by jumping over the hedge. Ehsanul Haq was then removed to the District Headquarters Hospital, Lyallpur, and the Medical Officer finding his condition serious, recorded his statement and forwarded it to the Police. The Police treated 4 the said statement as the first information report. Ehsanul Haq succumbed to his injuries at the hospital on the following morning, i.e. on 23rd December 1964, at 7 a.m. The Police, during investigation, recovered two empty cartridges from the scene of the offence. They also took into possession a shoe alleged to have been left by one of the culprits at the time of his escape. A tracker prepared the moulds of the footprints which were found at a distance of 5 or 6 karams from the spot where the dead body of Kaleem Akhtar was lying. As the tracks led to the Labour Colony on Nish at Mills, the Police started interrogating people of the said colony. It transpired that Mehr Ali who was working as a labourer since 1961, had a residential quarter there and ljaz Ahmad and Zafar Ali were living with him and that on 23rd December 1964, Mehr Ali left the Mill leaving an application for two days' leave. On the fourth day following, viz. on 26th December 1964, Mehr Ali made an application before a Magistrate at Lahore, asking to be sent to the judicial lock-up as the Police wanted to involve him in a false case and that he did not wish that the witnesses should see him. His prayer was granted. Two days later, viz., on 28th December, Zafar Ali and ljaz Ahmad were arrested from Pakki Thathi at Lahore. On 31st December 1964, identification parades were held and Hakim Masih picked out the two latter but failed to pick out Mehr Ali. Patras Masih, however, correctly identified Mehr Ali at two parade, The tracker Muhammad Azim who had examined the footprints left on the spot by the culprits and made moulds was put through a test and he correctly picked out the footprints of Zafar Ali and ljaz Ahmad but failed to pick out Mehr Ali's footprints. After identification parade, Mehr Ali was taken from Lahore to Lyallpur and at his instance his licensed gun, along with a bandolier containing 4 live cartridges, was recovered from the residential quarter of one, Atta Muhammad in Block 'C' of Labour Colony of Nishatabad. The gun and the fired cartridges which were recovered from the spot were sent for examination to the Ballistics Expert and he reported that the two empties had been fired from the said gun. The defence of Mehr Ali was that he had been involved in this case on suspicion, and that the Police had secured his gun and bandolier during his absence. The defence of the other two accused was that because of their relationship with Mehr Ali, they had been implicated in this case. The prosecution case rested on the identification of the accused by Hakim Masih and Patras Masih, which also found support from the recoveries made in the case. The trial Judge relying on their evidence convicted and sentenced the accused as stated above. On appeal and reference, the High Court maintained their convictions and sentences. This Court granted special leave to appeal with a view's to re-examine the evidence to see if identification on the spot wasi difficult'. The medical evidence shows that shots had been fired at the deceased persons from close quarters. In the case of Kaleem Akhtar the pattern was only 4 inches square and 9 pellets had entered the body of which four exited through the back. The margins of some of the entry wounds showed signs of burning. In Ehsanul Huq's case the direction was more across the body, but again the pattern was closed and there was blackening around the entry wounds. Four entry wounds were in an area 1 inches square about the navel. One such wound was 1 inches to the left of the navel and other pellets had grazed the abdomen further to the left leaving marks of burning. The tops of two fingers of his right hand were blown clean off. The fact that both Kaleem Akhtar and Ehsanul Huq died as a result of gunshot injuries, has been proved beyond any doubt. The learned counsel has contended that the presence of these two witnesses at the time of occurrence was open to serious doubt. He has argued that thieves would not have allowed a 4-man party carrying a hurricane lantern to come so near them. It was nothing unusual for the owner to go on a round of his kinnu garden accompanied by his servants. As the night was dark one servant was carrying a lantern and the other a torch. The nature of injuries on the person of the deceased furnishes clear proof that shots had been fired from close quarters Further, the fact that each shot hit its mark in a dark night showed that the gunman had spotted the deceased by the light of the torch and the lantern which the servants were carrying. In these circumstances, it will be difficult to speculate why the assailant allowed them to come close to him. It may be that het did not want to miss his target. It was next contended that as the two cartridges found were fired from the same gun, Ehsanul Haq could have easily moved out of the line of fire (hiring re-loading of the gun. Patras Masih (P. W. 24) has stated that `Kaleem Akhtar and Hakoo were walking in one line along with the kinnu tree while Ehsan deceased and I were walking in another line at a distance of about three karams from the other side of the line of kinnu trees'. He then says "The other shot fired at Ehsan was fired about two or three minutes after the first shot". It will, therefore, suffice to say that the physical facts as found in no way make his story improbable. It was then contended that the story as given by these witnesses is not consistent with the dying declaration of Ehsanul Haq. In his dying declaration Ehsanul Haq stated that he saw two persons in the light of the torch and as soon as they challenged them, they started firing. It was, therefore, sought to be argued that the story of the eye-witnesses that there were three intruders and that one of them fired both the shots, was not true. I would not attach much significance to the above inconsistencies, becaus the power of observations of a person who was, under the attack o might not be so precise as of the other who saw the attack. it is, therefore, very probable that Ehsanul Haq in the confusion did not notice the third person. Similarly, much importance cannot be attached to the words. Both he and his nephew Kaleem Akhtar were injured by two separate shots. Therefore, it was not unlikely for him to think that two persons had fired the shots. On the other hand, these two eye-witnesses who saw the attack and afterwards chased the intruders, were in a better position to see the gunman and members of his party present there. Some comment was made on the short delay in recording 'their statements by the Police. The identity of the culprits was not known and the Police was busy in obtaining clue as to their identity. Hence, the mere fact that these witnesses were examined on the next day, will not throw any doubt as to their presence at the time of occurrence. Having been taken through the entire evidence and having appreciated the entire set of circumstances involved, I entertain no doubt whatsoever that these two eye-witnesses are true witnesses of the occurrence. Now, the question is whether it will he safe to rely on the identification of these two eye-witnesses. I shall first take the case of appellant Mehr Mi. According to the eye-witnesses, he first fired a shot at Kaleem Akhtar and then after re-loading his gun, fired a second shot at Ehsanul Haq. In the test identification parade held after 8 or 9 days of the occurrence, e., on 31st December 1964, Patras Masih correctly identified him as the person who fired the shots. If his conviction rested on the identification of Patras Masih alone, I would have been inclined to accept the contention of the learned counsel that it would not be safe to rely implicitly upon evidence of identity based on personal impression in a dark night even though the, identification was by the light of a torch. It is no doubt true that such evidence should be approached with considerable caution where much depends on such evidence. The Courts below were, therefore, justified in looking for confirmatory circumstances in support of his evidence. They found one such circumstance in the fact that the crime empties wheh were recovered from the spot had been fired from the licensed gun of this appellant. His explanation was that the s lid gun was seized by the police during his absence, but in his application to a Magistrate at Lahore for taking him into custody it was nowhere stated that a gun belonging to him had been seized by the Police. I have, therefore, no hesitation in accepting the evidence of the recovery witnesses Abdul Majid (P. W. 14), a Lambardar, and Jamal Din (P. W. 15) that the gun and the bandolier had been seized at the instance of this appellant from the quarter of Atte Muhammad. I may further observe that these witnesses had no motive whatsoever to implicate falsely this appellant in this case. Furthermore, Shah Jamal Khan (P. W. 22), firearms expert, has proved that the said cartridges had been fired from the gun of this appellant. The second circumstance which might 1): regarded as tending to support the identification by Fatras Masih, was that a shoe belonging to this appellant was recovered at a distance of 5 or 6 karams from the dead body of Kaleem Akhtar. Muhammad Shaft, P. W. 13, a cobbler, works outside the Nishat Textile Mills, identified the said shoe as belonging to the appellant because Mehr got it repaired by him. Nur Din, P. W. 11, a supervisor of the Nishat Mills where the appellant used to work, has said that he had seen Mehr Ali appellant wearing this shoe. The only comment of the learned Counsel was that no attempt was made to see if this shoe fitted the appellant. If it really did not fit him, the appellant could have easily demonstrated the said fact in the Court. In these circumstances, the Courts below were fully justified in accepting the evidence of Muhammad Shaft and Nur Din. In view of the above confirmatory circumstances, I have no hesitation in accepting the evidence of identification by Patras Masih. I, therefore, agree with the Courts below that this appellant was solely responsible for the murders of Kaleeni Akhtar and Ehsanul Haq. Now, I take up the case of the other two appellants, namely, Zafar Ali and ljaz Ahmad. They have been convicted under section 394, P. P. C. According to the prosecution, one was standing with a lathi and the other was picking kinnus from atree. Both the eye-witnesses, namely, Hakim Masih and Patras Masih identified t hem in a test identification parade held at the Borstal Jail on 31st December 1964. As already pointed out, identification in a dark night based upon momentary glimpse in the light of the torch should be looked into carefully and cautiously. The only circumstance, on which the prosecution relied in support of the evidence of the witnesses against thee appellants, was that of the tracker Muhammad Azim. His evidence is based upon the comparison of the shod footprints found near the scene of offence' with the bare footprints of these two appellants. Of all kinds of evidence admitted in a Court this may be regarded as evidence of the least satisfactory character. Hence, there is considerable force in the contention that it will be very unsafe to rely on tracker's evidence. At the most, it may be said that the evidence led against these two appellants disclosed grave suspicion of guilt, but it did not raise that high degree of probability on which a conviction should be based. They are, therefore, entitled to get the benefit of reasonable doubt. For the reasons stated above, I would dismiss the appeal of Mehr Ali and maintain his convictions and sentences, l would, however, allow the appeal of Zafar Ali and ljaz Ahmad, set aside their conviction and sentence under section 394, P. P. C. and order that they be released forthwith if not wanted in connection with any other case. S. A. RAHMAN, J.

I agree. HAMOODUR RAHMAN, J.-I agree. MUHAMMAD YAQUB ALI, J.-I agree. CORNELIUS, C. J.-The three appellants, Mehr Ali, Zafar Ali and ljaz Ahmad, all of them workers at the Nishat Cotton Mills in Lyallpur and related among themselves, stand convicted as below, as a result of the dismissal of their appeal by the High Court. All three have been convicted under section 394, P. P. C., for robbery and Mehr Ali has separately been convicted on two counts for murder. Special leave was given to them to appeal against the High Court judgment in order to re-examine the evidence. The account of the manner and circumstances of the crime given in a dying declaration by lhsanul Haq, was as "I went to make a round of my garden with Kalim Akhtar, my brother's son and two servants Haku and Patti. I had a gun, Patti had a Lamp, Haku had a torch (battery) and Kalim Akhtar had a lathi. I suspected there were intruders in the garden. Two men were seen in the light of the torch. When we called to them, they started to fire. My nephew was hit and fell down. Immediately after I too was hit. The butt of my gun was broken and I was injured in my hand and wrist. The servants raised a cry and ran after the intruders. Later, my brother Muhammad Saeed and my nephew Muhammad Nasim Akhtar hearing the noise came to the spot. Kalim Akhtar died on the spot. I was brought to hospital. I will recognise the culprits, if I see them." This report was madeat the hospital in Lyallpur at 9-15 p. m. and was recorded by a Dr. Abdul Wahid, who attended to lhsanul Haq and made a note that he was in full possession of his senses when he made his statement. The time given for the occurrence is 7-30 p. m., on the evening of the 22nd December 1964, and the place is some three miles distant from the Saddar Police Station at Lyallpur. There was no moon. The garden was a large one covering about 50 acres, and contained mango and 'kinnu tree planted in rows about 4 karams apart. The house where lhsanul Haq lived was about 250 karams away from the spot, as to whose identity there could be no doubt for the body of the dead Kalim Akhtar lay there. There was a blood stain to indicate where Ihsanul Haq had fallen when he was hit. These two places are on opposite sides of a row of trees. The spot is at about the edge of the garden, marked by a khal which runs about 12 karams to the north from the place where Kalim Akhtar was hit. The Police Officer, S. I. Abdur Rashid reached the spot the same night and commenced investigation. Although he had gas lamps available, he did not make a full investigation the same night, but left it until the following morning. He, however, sent for trackers and some track evidence was led in the case. The trackers were able to pick out the tracks of three men who had come together to the garden and to the spot and also followed the tracks of the same three men allegedly going away from the garden and returning to the labour quarters at the Nishat Cotton Mills by a circuitous route. One of the retreating tracks was, it is said, of a person who was wearing only one shoe. One shoe was found the following morning at the edge of the garden and close to it was found a bag containing kinnu fruit. Three sets of foot prints were seen on the spot all in shoes and moulds were made of one foot out of each set. Near the body of Kalim Akhtar a wad of a cartridge- was found. At the place where lhsanul Haq was hit, his gun was found from the butt of which three pieces ,had been broken off while the rest ,of the gun and the barrel were intact. One empty cartridge was found on one side of the row of trees at the place from which Kalim Akhtar was said to have been fired at. This place was about 9 karams from the place where Kalim Akhtar's body was found. Another empty cartridge was found on the other side of the row of trees and was said to indicate the place from which lhsanul Haq.was fired at. The distance between this place and the place where lhsanul Haq fell is five karams. The plan of the spot produced by the prosecution was exhibited as Exh. P. B. It was drawn by Patwari Muhammad Ali, P. W. 9 and the endorsement is to the effect that it had been made in accordance with indications given by witnesses. The only witnesses of the occurrence produced are the two men Haku (Hakim Masih) and. Patti (Patras Masih), but it is a remarkable feature of this plan that the places where these two men were at the time of the incident are not shown. Their names are not mentioned on the plan at all. Each of the five spots shown is a place from which material objects connected with the crime were said to have been recovered, and the plan mentions what was recovered in relation to all five places. The injuries sustained by Kalim Akhtar and Ihsanul Haq were all the result of gun shots. Kalim Akhtar, received the pattern of a shot on his left chest where nine circular entry wounds were seen in an area measuring 4" x 3". There was slight burning around three of these wounds. Part of the charge of the shot had exited through two separate holes in the back, and four pellets were found inside the body, where extensive damage was found to vital organs resulting in immediate death. Quite evidently, this shot was fired from a range not much over ten feet lhsanul Haq died on the night of the 22nd December, and at the post-mortem examination, the following day, it was foundthat as a result of pellets entering his body in the region of the navel, the stomach had been perforated and death had resulted rrom internal haemorrhage and shock. In his case too, the entry wounds were all situated in a small area on the left side of the abdomen, and showed slight burning. Three pellets were found inside the body. The little finger and the ring-finger of the right hand had been blown off. It seems that some ofthe pellets from the same charge of shot hit and broke off pieces from the butt of the gun, and the indications are that Ihsanul Haq was probably carrying the gun with his right hand across his body and had his left side exposed to the assailants at the time when the shot was fired. Here too, the distance between the gun and the target was probably about 10 feet. According to the plan, however, the distance between the gun and. Kalim Akhtar was about 45 feet and that between the gun- and Ihsanul Haq was about 25 feet. These distances cannot obviously be correct, and the question remains whether they could have been indicated by eye-witnesses. The omission to indicate on the plan where Haku and Patti the alleged eye-witnesses were, when the shooting took place, thus gains significance and reflects on the possibility that Haku and Patti were not there at all when the shooting took place. Another matter going to strengthen that doubt appears from the evidence of the Thanedar and these witnesses. It is that being on the spot aft the time that the Thanedar was there, they were not examined until 11 a.m., on the following day (see Patras Masih P. W. 24). The Thanedar gave the impression that these men were not in the garden that night, but both of them say that they were there throughout from the time they returned after making a fruitless chase of the culprits. Here another feature of' doubt appears. The story that Hakim Masilt and Patras Masih gave is that following the firing of the two shots, both of them immediately went in pursuit of the culprits, and continued to follow them although they never saw them again, for so long a time that when they returned, relatives of the.two persons who had been hit had arrived on the spot after hearing the gunshots and had already carried lhsanul Haq away to the hospital. It may be imagined that being men of substance, the relatives being conscious of the need to take Ihsanul Haq to hospital immediately and having the means to do so did not waste any time un necessarily at the spot. But this is not a sufficient explanation for Hakim Masih and Patras Masih to have left their two very seriously injured masters on the spot unattended and at the risk of their own lives gone off in pursuit of assailants, who would probably not hesitate to shoot them as well. At the very least, in the situation which followed the shooting, both Kalim Akhtar and Ihsanul Haq being down on the ground, one of the servants would have remained on the spot to attend them. Both say that with a recklessness, which is not to be easily assumed, although neither of them had -any weapon, they ran after the culprits immediately, and regardless of their masters' dire need for help, stayed away for a time which could scarcely have been less than half an hour, and was probably much longer: The reason given by Haku for this behaviour is that when Ihsanul Haq was hit, he ordered them to go in pursuit, and this order was shouted to them also by Muhammad Said P. W. 20 and Naseem Aklitar.P. W. 21 two relatives of the deceased, as they ran from the house some 200-250 karams away, on hearing the shots. The latter statement is entirely improbable, for Muhammad Said and Naseem Akhtar could not have known who had been hit or whether a pursuit was necessary until they reached the spot. Moreover, while Ihsanul ,Haq in his dying declaration clearly said that two men were seen, and the narrative in his dying declaration suggests that more than one person fired in immediate sequence, the evidence of Hakim Masih and Patras Masih is that there were three men, and that only one gun was used by one of them. According to the indications contained in the plan, this man fired from one side of a row of trees at Kalim Akhtar and then went across to the other side to fire at Ihsanul Haq. If it was said that a double-barrel gun was used which does not need to be loaded between two shots, this circumstance could partly explain the two shots appearing to Ihsanul Haq to be fired in immediate sequence, but the prosecution case is that the shots were fired from a single-barrel gun, that is a gun licensed in the name of Mehr Ali which was recovered some 12 days later, and evidence has been led to show that the two empty cartridges found on the spot the following morning were in fact fired from this gun. Other matters appearing from the evidence of Haku and Patti are the following. Both say they saw three men in the light of a torch ; one holding a gun, another picking kinnus which he was putting into a bag of which he was holding one end, and the third holding the other end of the bag with one hand and a twill in the other. This conflicts with Ihsanul Haq's clear statement that two men were seen. Moreover, Patras Masih said in evidence that when the three men whom he saw found that they were observed, they at first retreated if that were the case some reason would have to be found for their stopping and firing, for evidently the object was not to commit murder, but only to steal fruit from a kinnu tree on the edge of the garden. Here it may be of interest to note that it was brought out in evidence that the family of the deceased possessed other guns besides that which lhsanual Haq was carrying, and it was put to one of the witnesses Muhammad Said, P. W. 20 that in fact what happened was that Ihsanul Haq and Kalim Akhtar had fired at each other by mistake, each taking the other for a thief. None of the culprits, whether there were two or three, was identified on the spot, and it is necessary to examine the manner in which the three accused persons were discovered by the police officer, and the further result of the investigation. Following the clue provided by the trackers, the Thanedar commenced - enquiries in the labour quarters of the Nishat Mills and he found on the 25th December that there were only three workers absent from the colony, these being the three appellants In this case. He took possession of their "employment" cards from the Mill authorities. On these cards photographs of these persons appeared. From a relation of Mehr Ali, he learnt that the three men had gone to Lahore. He made enquiries from cobblers in that area about the single shoe that had been found on the spot. And one of them Shafi by name allegedly identified the shoe ashaving been repaired by him for Mehr Ali, appellant about a month before the occurrence. Shafi as P. W. 13 gave evidence to the same effect, but it should be pointed out that no attempt was made to try this shoe on Mehr Ali's foot, and there is nothing on the record to show that it is of the appropriate size for his foot. There was available a very distinct clue in this respect. As appears from the statement of the tracker, Muhammad Azim, P. W. 18, the three sets of foot-prints that he followed were distinctly dissimilar. One of them was 13 fingers in length, another was 14 fingers and the third was 15 fingers long. This tracker matched the foot print that was 13 fingers long with the foot of Zafar Ali, appellant,' and that which was 14 fingers long with the foot-print of Ijaz, appellant. Therefore, if it had been shown that Mehr Ali's foot was 15 fingers in length, that would have furnished some indication of his being the third man in the group. Also, if there had been evidence that the shoe, Exh. P. 4, would fit a foot 15 fingers in length, a further link in the chain might have been available. There is no evidence at all to either effect. Evidence had been led to show that on the morning following that occurrence, that is the 23rd December, Mehr Ali put in an application for two days' leave of absence, and did not appear for work. Only one day's leave was granted. The excuse given for leave was "zaruri kaam", i e., urgent work. Mehr Ali never returned to duty, but on the 26th December, he presented himself before a Magistrate in Lahore and made an application in which he said that a false case had been made up against him in Lyallpur and.the Police was searching for him. He wished to avoid being shown to the witnesses and therefore he asked that he should be taken in custody and sent to the Judicial lock-up. This was done. As for Ijaz, he worked on the 23rd December, but absented himself from work on the 24th December 1964. Zafar Ali was not in the employment of the Mills and appears to have been living in the colony waiting for a job. However, he had furnished photographs with his application which were in the posses sion of the Mills. These two men Ijaz Ahmad and Zafar Ali were arrested in Lahore on the 28th December 1964. All three were put up for identification by the witnesses, Hakim Masih and Patras Masih on the 31st December 1964. Both witnesses correctly picked out both Ijaz Ahmad and Zafar Ali from among 11 others. On the same day, Mehr Ali was separately put up for identification being placed with only six other persons. Patras Masih identified him, but Hakim Masih failed and in evidence gave the explanation that the accused' had changed his appearance, but did not say in what way. On the same day, foot-print tests were held, and the tracker Muhammad Aziin, P. W. 18, was asked to pick out foot-prints corresponding to those that he had seen on the spot and elsewhere on the day following the occurrence, as well as to the moulds which had been made. Mehr Ali was made to walk bare-foot with six other persons on clean ground. The tracker failed to pick out his foot-prints correctly, but selected another set. Later, Zafar Ali and Ijaz Ahmad were made to walk bare-foot with 11 other persons on a clean piece of`ground, and the tracker being called in, correctly picked out the foot prints of these two men. The. tracks which Muhammad Azim saw on the morning following the occurrence were of three men walking in shoes coming from the Nishat Mills Labour Colony to the garden, and two men with shoes and one man with only one shoe and the other foot-bare on the way back. It is somewhat remarkable then that he should be able to pick out the prints left by Zafar Ali and ljaz Ahmad when walking bare-foot, but he explained that he went by one. style of walking, pressure of each foot on the ground, the length of each pace, the way the foot was held in walking, etc. If there be any truth in that claim, and if indeed Mehr Ali was the third man in the group that went from the labour colony to the garden and back, Muhammad Azim should have been able to pick out Mehr Ali's foot-prints also. Therefore, it is not without significance that he actually picked out another set of foot-prints as corresponding to those of the third man. It was after these identification tests had been held on the 31st December that the accused persons were handed over to the police of Lyallpur. The Thanedar Abdur Rashid has stated that it was on the 3rd January 1965, that Mehr Ali was handed over to him, and in the words .of the Thanedar "volunteered to produce the licensed gun". Evidence has been led to show that he led the way to the quarter of one Atta Muhammad in the labour colony, and standing in a corner of the quarter was the gun, Exh. P-5 licensed in Mehr Ali's name. The Thanedar stated that he made the gun into a sealed parcel and serit.it to the Forensic Science Laboratory. As for the crime cartridges allegedly found on the spot, it is in evidence that the sealed parcel containing these cartridges allegedly made on the 23rd December was handed over to Foot Constable, Rafiq Ahmad P. W. 7, on the 2t7h December 1964, at the spot, to be taken to the malkhana at Lyallpur, where it was delivered on the same day. This was the fifth day following the alleged discovery of these cartridges on the spot, and was also the day after Mehr Ali was arrested in Lahore. In his statement at the trial, Mehr Ali said that the gun had been taken from his quarter during his absence in Lahore. When an accused person produces an object connected with the crime alleged against him, from a place of concealment which only he himself could have known about, the inference is reason able that he himself put the thing there, and the object of the concealment may reasonably be connected with the crime alleged. In this case, the gun was not concealed in any way. It was lying openly in a corner of the room which presumably constituted the quarter occupied by Atta Muhammad. Atta Muhammad was not present at the time of the recovery, nor was any attempt apparently made to secure his presence. There were women , in the quarter who were asked to move aside when the Police came. Atta Muhammad was not produced in evidence to explain how the gun happened to be in his quarter. A number of reasons can be imagined for explaining that circumstance. tore- over, the gun being in Atta Muhammad's quarter and it not being shown that it was put there by Mehr Ali, if it be assumed that it was in that quarter from a time immediately following the commission of the crime, until its discovery, the inference as tothe person by whom the gun was employed in the commission of the crime (assuming that this is held proved) should be that the user was Atta Muhammad. Therefore, from the mere recovery of the gun from Atta Muhammad's quarter, lying openly and Unconcealed in a corner, it is not easy to draw the conclusion beyond possible doubt that at the time of the commission of the crime, possession of the gun was with Mehr Ali and with no other person. The matter might have been cleared up by calling in, evidence the man Atta Muhammad, and provided he testified that the gun was left with him by Mehr Ali, at a time after the commission of the crime. It is true that if this recovery evidence were fabricated it would have been easier and more direct to attempt to show that the gun was found in Mehr Ali's quarter. But in that case, the date of the recovery would have necessarily been earlier than the 3rd January 1965, for it is clear that from the 25th December onwards, Mehr Ali was suspected along with the other two appellants of being involved in the crime and he being absent from Lyallpur there need have been no difficulty in making a search of his quarter, either on that day or on any one of the following eight days before the 3rd of January. -The record does not show that Mehr Ali's quarter was searched at all. There is evidence on the record to show that the two alleged crime cartridges were fired from the gun, Exh. P-5, and no other gun, but that evidence must be taken with the circumstance that there was a delay of 4 days before the sealed parcel containing the cartridge was delivered at the Lyallpur Police malkhano and this was done two days after suspicion had fallen on Mehr Ali and it ' had been discovered that, he had been absent from Lyallpur since the 23rd December, so that the possibility of his quarter having been searched in the interval before the sealed parcel of the cartridges was delivered at the. malkhana remains evident. It is now possible to state my conclusion as to the degree of reliance to be placed upon the various pieces of evidence led in this case. The names of Haku and Patti undoubtedly occur in the dying declaration of Ihsanul Haq, but it is also clear from the record that Ihsanul Haq was accompanied to the hospital by his relations, and the fact cannot be ignored that it was of the utmost importance that witnesses should be mentioned in his statement. The alleged behaviour of Haku and Patti immediately after the shooting clearly runs counter to the natural probabilities. Added j. to this is the circumstance that their names do not appear in the notes on the plan which was made on the 26th December. nor are the places where they were standing shown on the plan. It remains unexplained why the Thanedar delayed recording the statements of Haku and Patti for about 12 hours. The case was, an important one and lamps and other necessary equipment being available, and the witness being on the spot, it was natural to K expect that their statements should be recorded forthwith, or at any rate, immediately that the investigation commenced the following morning. -It seems clear enough that their evidence, has been adopted to the discovery made by the trackers that the thieves numbered three and not two. It is also clear that photographs of all the three appellants were in the possession of the Police on the 25th December, at the latest, and despite denials by the prosecution witnesses, the 'possibility remains that the identification of Zafar Ali and ljaz Ahmad by the witnesses Haku and Patti was made possible because of these photographs. But as to Mehr Ali, one of these witnesses failed to pick him out and it may be said that if they had gone by the photographs, there should not have been any such failure. At the same time, recollec tion of a face seen in a photograph is not necessarily very strong. The view that 1 have formed taking all these matters into account is that it is very doubtful whether Haiti and Patti areeye-witnesses of the incident. The shoe Exh. P. 4, does not in my opinion serve to connect Mehr Ali with crime at all. The evidence of the cobbler Shafi is in my opinion wholly insufficient to establish this crucial allegation of fact. On the other hand, 1 am more impressed by the circumstance that the tracker who seemed to have a measure of skill picked out another man's tracks as resembling those of the third thief at the parade on the 31st December at Lahore in which Mehr Ali participated. There remain the gun and the cartridges and as to them. I have said enough to indicate that the evidence led is by no means sufficient to establish that the person who used the gun, assuming that it was used for the commission of the crime, was Mehr Ali and no other person. The learned Advocate-General stressed at the close of his argument that by hastily absenting himself from the labour colony on the 23rd December, Mehr Ali displayed a guilty conscience.' The argument is weakened by the circumstance that there has been no attempt to show that Mehr Ali had in fact no business at all in Lahore. The disappearance of the other two men took place on subsequent dates by which time the Investigating Officer appears to have formed an opinion that these three men and no others were the culprits, and their leaving the labour colony could well be explained by this circumstance. For these reasons after a careful analysis of the. evidence led in this case, I consider that the charges on which they have been convicted have not been brought home to any one of them beyond reasonable doubt, and I would accordingly allow this appeal and acquit them all. ORDER OF THE COURT We accept the appeal of Zafar Ali and Ijaz Alimad and acquit them, but in accordance with the opinion of the majority, we dismiss the appeal of Mehr. Ali. Order accordingly.