' ALI HUSSAIN QAZILBASH, J.-Abdul Hamid son of Fazal Ahmad, resident of Tarmakhi, Tehsil Haripur, District Abbottabad, was tried for offences under section 302/449, P. P. C. By Rasul Khan Khattak, the then learned Additional Sessions Judge, Abbottabad at Haripur on the allegations that he on 7-6- 77 at 7 a.m. Within the limits of village Tarmakhi caused the death of Mst. Barkat Jan and Resham Jan by firing at them while committing house-trespass of Nawab Khan and vide his order dated 12- 6-78 convicted him (appellant) under section 302, P. P. C. (two counts) and sentenced him to death on each count besides a fine of Rs, 4,000 on each count which on recovery was ordered to be paid to the heirs of the deceased persons. In case of non-payment of compensation, the appellant was further ordered to undergo two years' R. I. On each count.
2. Through this Appeal No, 183 of 1978 Abdul Hamid appellant has challenged his conviction and sentences. There is also a Murder Reference No, 38 of 1978.
We propose to dispose of both the appeal and the Murder Reference by this single judgment.
3. The episode of the prosecution case as reflected in the F. I. R. (Exh. P. A.) lodged by Muhammad Zaman the same day, i,e, 7-6-77 at 10-30 a.m. When rendered into English reads as :- "Today I was standing oustside my house when in the meantime, I saw Abdul Hamid son of Fazal Ahmed resident of Tarmakhi armed with rifle "golidar" coming to our house from village Sabra ; that my mother Mst. Resham Jan and sister Mst. Barkat Jan were sitting in the courtyard of the house ; that on seeing Abdul Hamid accused armed with rifle coming towards the house, they at once entered the kotha and closed the door ; that when Abdul Hamid came in front of the door, he fired a shot at the door and after giving a kick to it, opened the same and entered the kotha ; that he fired four shots one after the other and thereafter decamped towards the south-east ; that after the decamping of the accused, I entered the kotha and saw my mother Mst. Resham Jan injured on right side of the neck, right side of the shoulder and was in the agony of death : that Mst. Barkat Jan was lying dead having injuries on her head (both sides) near the ear and right side of the stomach ; that at that time my sister Mst. Safdar Jan and brother Rukan Zaman were present and witnessed the incident. I charge Abdul Hamid son of Fazal Ahmed resident of Tarmakhi for the murder of my mother Mst. Resham Jan and sister Mst. Barkat Jan.
' Motive for the crime in question is that six months prior to the incident Abdul Majid brother of the accused had kidnapped my sister Mst. Barkat Jan who after living two months with Abdul Majid, came back ; that the accused wanted to take back my sister Mst. Barkat Jan who was refused by my mother."
3. The report, Exh. P. A./1, was recorded by Muhammad Badshah Khan, the then S. H.
0., Police Station, Khanpur on 7-6-77 at 10-30 a.m. At the instance and dictation of Muhammad Zaman (P. W.) who after admitting the contents thereof to be correct thumb-impressed it. The "murasila" Exh. P. A./l, was sent to the Police Station for the registration of the case where on its basis a formal F. I. R. (Exh. P. A.) was drawn up. The S. H.
0. Then prepared the injury sheet, Exh. P. W. 3/4, and inquest report, Exh. P. W. 12/2, of Mst. Barkat Jan, injury sheet, Exh. P. W. 3/3, and inquest report, Exh. P. W. 10/3 of Mst. Resham Jan and sent their dead bodies to the mortuary for P. M. Examination under the escort of Shah Rehman F. C. (P. W.). The site- plan, Exh. P. W. 10/4; was also prepared by him (Muhammad Badshah Khan P. W.) at the instance and pointation of the eyewitnesses, correctly with all its notes and drawings in pencil. During spot inspection, the witness in hand took into possession blood-stained earth, Exh. P. 6, five empty cartridges of rifle, Exh. P. 7, one `parat' Exh. P. 8, and one led bullet, Exh. P. 9, per memos Exh. P. W. 2/1, Exhs. P. W. 2/3 respectively. He also took into possession blood-stained shalwar, Exh. P. 2 and dopatta, Exh. P. 3, of Mst. Barkat Jan deceased besides a shirt. Exh. P. 4, and shalwar, Exh. P. 5, of Mst.
Resham Jan deceased and sealed them into a parcel vide memo. Exh. P. W. 1/1 per memo Exh. P. W.
5/1 the Investigating Officer took into possession at the pointation of the appellant one rifle, Exh. 10, with five live cartridges, Exh. P. 11 and prepared the site-plan in this behalf which is Exh. P. W. 10/5.
The rifle, Exh. P. 10, along with empties and live cartridges was sent to the Ballistic Expert for his opinion whose report received in this regard is Exh. P. W. 10/7 which is in positive. As the accused wanted to make a confession, the witness in hand produced him before a Magistrate who recorded his confessional statement which is Exh. P. W. 11/1. He recorded the statements of the P. Ws.
Under section 161, Cr. P. C. And on the arrest of the accused submitted challan against him.
4. At the trial, the prosecution in order to bring home the charge to the accused, produced as many as twelve (12) witnesses. As against this, the accused denied the charges levelled against him and professed innocence. Regarding the abduction of Mst. Barkat Jan deceased by his brother, the appellant stated :- "Mst. Barkat Jan deceased was my legally wedded wife and the marriage ceremony was performed on 6-2-77. I produce the original Nikah Nama Exh. D. X. The story of abduction by my brother Abdul Majeed was fabricated by the prosecution to create evidence of motive which is totally false. My wife was a woman of easy virtue and was carrying on illicit intrigues with various persons including Sadiq her maternal cousin. The offence was, however, not committed by me and she might have been killed by his paramours."
' He also denied the recovery of rifle, Exh. P. 10, having been recovered at his instance and pointation. While explaining his absence till 11-6-77, the accused-appellant stated :-- "From a week before the occurrence, I had been in search for employment in Abbottabad. 1 have studied upto 10th Class. I produce the certificate Exh. DX/2. When I learnt about the murder of my wife and charge against me, I voluntarily surrendered myself before the District Magistrate, Abbottabad. I did not abscond."
' When questioned about his confession made by him before the Magistrate the accused appellant deposed :- "I was detained by the police for about four days and did not produce me during this period before the Magistrate. I was beaten and tortured by the S. H.
0. Who also held out promises and inducement. The S. H. O. Placed a written statement before the Magistrate and asked me to tell the so-called statement according to it. I did it out of fear.
Although I never stated what is contained therein. It is false statement which is outcome of physical torture duress and coercion. I asked the Investigation Officer to get me medically examined but he did not do so."
' In the end of his statement, the appellant claimed himself to be innocent and having been falsely charged on account of suspicion and enmity. He also produced no evidence in defence.
5. Lady Dr. Mumtaz (P. W.) conducted autopsy on the dead body of Mst. Barkat Jan aged 16 years on 7-6-77 at 4-10 p. m. And found the following external injuries on the corpse :-
(1) 'x fire-arm wound blackening on the right side of abdomen 2' lateral to the umbilicus.
(2) x 2" wound of exit, everted margin through which large intestines and peritoneum protruding.
(3) x 1/4" wound of entrance on the right side of scalp just behind the right ear, hair around which are burnt and underlying bone fractured.
(4) 1.1/4. Wound of exit on the left side of scalp and the bones on back side are fractured by it.
' On dissection the lady doctor found scalp and underline bone fractured and so were the left side of scalp and skull bone on back side. Membranes and brain were found congested and cranial vessels injured. Abdominal walls, peritoneum and muscles were also found injured. Stomach contained digested food material. Right side of scalp and temporal bone fractured and so were the left side of scalp and parietal bone.
' Death, in the opinion of the doctor, was due to profuse bleeding from cranial vessels and shock.
Probable time that elapsed between injuries and death was within 20 minutes and between death and P. M. Examination was within 24 hours.
' The said witness also conducted autopsy on the corpse of Mst. Resham Jan on 7-6-77 at 3-30 p.m. And found the following external injuries on it :--
(1) 1"x r gunshot wound of entrance with blackage on the right side of the neck 1/4 lateral to mid line.
(2) 1 x 2' wound of exit and averted margin on the left side of the neck on the middle of clavicle bone.
' On internal examination Trachea, blood vessles and left scapula were found injured. Stomach contained digested food. Muscle of the neck, oesophagus and trachea were found injured. Left clavicle was fractured. Death was due to profuse bleeding from left supolaviam. Probable time that elapsed between injuries and death was within 15 minutes and between death and P. M.
Examination was within 24 hours.
6. The learned trial Court while convicting the appellant has based its finding on the ocular testimony of the two eye-witnesses, supported by Sadiq (P. W. 7), medical evidence, retracted confession of the appellant and other circumstantial evidence, i,e, the recovery of weapon of offence on the pointation of the appellant, five crime empties and a led bullet which were recovered from the vicinity of the spot besides the report of the Ballistic Expert.
7. The learned counsel for the appellant, however, has decried each and every finding of the learned trial Court and his contentions were that the prosecution has miserably failed to bring home the charge to the appellant. His main argument revolved round the following points :-
(i) That the F.
1. R. (Exh. P. A/1) lodged by Muhammad Zaman (P. W.) at the spot cannot be termed as First Information Report inasmuch as the occurrence had earlier been reported in the Police Station through a "Rukka" (not produced at the trial) carried by Muhammad Sadiq (P. W. 7). The F.
1. R. The learned counsel contends should have been recorded on the basis of that "Rukka". He further contends that if the case had not been registered on the basis of that "Rukka" (for reasons best known to the prosecution) the F. I. R., should have been recorded on the oral information furnished by Muhammad Sadiq (P. W. 7) who as is evident from the copy of the "Roznamcha" Exh.
P.W. 10/1, informed the police officials that the deceased, i,e, Mst. Resham Jan and Mst. Barkat Jan were his mother and sister respectively.
' Further contends that it (F. I. R.) was recorded after a considerable delay and no plausible explanation has been put forth by the prosecution for this inordinate delay, therefore, the possibility of fabrication cannot be ruled out. Relies on PLD 1968 Quetta 7 and PLD 1979 Lah.
263.
(ii) That the eye-version account in this case is not only furnished by highly interested witnesses but is also belied by the medical and other circumstantial evidence. No reliance, therefore, can be placed on such interested and discre pant evidence on a capital charge of murder.
(iii) That the so-called confession on which reliance has been placed by the trial Court is not only retracted but its authenticity is otherwise doubtful because the appellant remained in the police custody for four days prior to its recording.
(iv) That the recovery of alleged weapon of offence at the instance of the appellant has not been proved and so is the recovery of the empties. The report of the Ballistic Expert is nothing but a piece of waste paper as the test bullets were not the same which were found in the magazine of the weapon. Moreover the alleged weapon of offence and the bullets were sent to the Expert for his opinion after about five months; and
(v) That the motive advanced by the prosecution has not been proved to the hilt, therefore, it cannot be said that the appellant had a motive to kill the deceased persons.
7-A. Now we would like to discuss the objections raised by the learned counsel for the appellant in the light of the evidence furnished by the eyewitnesses and other circumstantial evidence.
To begin with first objection, the perusal of the record shows that the grievance of the learned counsel for the appellant that in fact F. I. R. (Exh. PA/1) is not the First Information Report and is a mere statement of Muhammad Zaman (P. W.) recorded during the investigation of the case is correct, for, the first information which moved the Investigation Agency is a "Rukka" (chit) allegedly written by Imdad Hussain Shah, lambardar of village Tarmakhi to the address of the S. H.
0. Of Police Station, Khanpur sent through Muhammad Sadiq (P. W. 7). Under the law, it was the bounden duty of the police official/officer present in the Police Station a that time to have registered the case on the basis of that chit. This chi has not at all seen the light of the day and its suppression by the prosecution is intentional in that in the said chit (which has been incorporated in the daily diary of 7-6-1977, copy Exh. P. W. 10/1) neither the name of the assailant not the time and date of incident has been given. The failure of the police official/officer at the police station by not recording the report on the basis of that chit or for that matter on the information of Muhammad Sadiq to the effect that the deceased persons were his mother and sister is a serious infirmity in the prosecution case.
' The recording of the F. I. R. At the spot by the I.
0. In view of the above circumstances cannot be termed as an F. I. R. As laid down under section 154, Cr. P. C. At the most it is a mere statement of Muhammad Zaman recorded under section 161, Cr. P. C. And it cannot assume the character of an F. I. R. As has been held by their Lordships in PLD 1979 La h.
263.
' Assuming without conceding that Exh. P. A. Is the only F. I. R. In this case yet its authenticity and genuineness is doubtful in that it was recorded at 10.30 a.m. When according to Shah Rehman F. C.
The information regarding the incident was received in the police station at morning and he accompanies the S. H.
0. To the spot where they reached at 8/9 a.m. Which fact is supported by Muhammad Saddiq (P. W.
7) yet the report was recorded at 10-30 a.m i,e, about 1.1/2 hours after the arrival of the S. H.
0. At the spot. This delay which has not been explained, clearly suggests that the complainant part had ample time for consultations and deliberations and it was thereafter that the complainant party laid a false charge at the door of the appellant who according to them, was their enemy. The delay in lodging the so called F. I. R. Has totally destroyed the prosecution case.
8. As far the second objection is concerned, it would also prevail with us in that we have on record the statements of two eye-witnesses, namely, Mohammad Zaman son of Mst. Resham Jan and brother of Mst. Barkat Jan deceased and Mst. Safdar (P. W. 8) sister of Muhammad Zaman (P. W.)
Their close relationship with the deceased persons is not denied and they being teen-ager, the question of their personal animosity with the appellant does not arise, therefore, they cannot be termed as interested witnesses yet as the case stands their version requires careful appraisal.
' Both these witnesses are consistent in their deposition that they were present in their house on the morning of the incident when they saw the appellant coming to their house duly armed with rifle, pursued his victims into the kotha who by then had entered the same, closed its door to escape death, and in the process the appellant fired the first shot at the door of the kotha then kicked the door as a result of which its door gave way and then he fired at the two deceased, two shots each thereby killing both of them inside the kotha. Besides the other discrepancies in their statements, one thing is very significant and it suggests very strongly that though they are disinterested witnesses yet because of their tender age, they were positively under the influence of the Investigating Agency. This we say so because unless they were tutored either by the Investigating Agency or by their elders they could not have possibly stated that the accused was armed with a rifle and has used the same in the commission of the offence. This has been done deliberately by the prosecution in order to bring the statement of two witnesses in conformity with the dimension of the injuries on the person of the two deceased and the recovery of five empties of '303 bore from the vicinity of the spot and also the led bullet. Both the witnesses are consistent on the point that the appellant fired two shots each at the deceased persons and in this regard they are contradicted by the medical evidence in that according to the statement of the lady doctor who conducted autopsy on the corpses of the deceased persons stated that the injuries on the person of Mst. Resham Jan were the result of one shot, and similarly the injuries on the person of Mst.
Barkat Jan were the result of two separate shots. It follows that the injuries on the persons of the two deceased were the result of three shots and not four as stated by the two eye-witnesses. The testimony of Muhammad Zaman is further belied by his own F. I. R. In which he has not specifically mentioned that the appellant fired two shots each at the deceased-persons and instead stated that in all four shots were fired by the appellant one after the other and rightly, too, because he was not an eye witness to the firing inside the kotha. The statement of Muhammad Zaman that Mst.
Resham Jan was also hit with the fire-shot of the appellant in her chest is also belied by the medical evidence in that this deceased did not have any injury on her chest. Muhammad Zaman in his F. I. R. And at the trial stated that his sister Mst. Barkat Jan in order to save her skin picked up "parat", Exh. P. 8, and placed it over her abdomen. The shot fired by the appellant hit in the middle of her abdomen thereby piercing the said "parat" whereas the lady doctor found the entrance wound on the right side of the abdomen with blackening which in the circumstances is not only impossible but improbable. It is also in the prosecution evidence that when the appellant entered the courtyard of the house, Mst. Barkat Jan was kneading the "Atta" but strangely enough the I.
0. Had neither recovered "Atta" nor the pot in which it was being kneaded. Furthermore, the I.
0. Who prepared her injury statement and the inquest report or for that matter the doctor who conducted autopsy on it has not stated that the hands of Mst. Barkat Jan were soaked with "Atta".
' Over and above, their statements are also not in line with the site-plan prepared by the I.
0. At their instance. For example, Muhammad Zaman in his cross-examination has admitted that he was at a distance of 2/3 pace from the appellant at the crucial time whereas in the site-plan, Exh. P. W. 10/4 the presence of this witness has been shown at point No, 6 which is at a distance of 16 paces from point No, 5 from where the appellant allegedly fired at the victims. Moreover, in view of the distances between the assailant and his victims in the site-plan, burning and blackening on wounds Nos. 3 and 1 on Mst. Barkat Jan and Mst. Resham Jan respectively is also not possible.
' There is yet another important factor which has cast a thick cloud over the veracity of the so- called eye-witnesses. Both the eye-witnesses have consistently stated that the incident had taken place at 7 a.m. Whereas it is in the prosecution evidence that the deceased-persons had their breakfast at morning "Azan" time, I e. About 4 or 4-30 a.m. Lady Dr. Mumtaz fours' the stomach of the deceased persons containing digested food. She examined, them at 3.30 and 4.10 p.m. On 7-6- 1977 and opined the minimum time between death and p.m. Examination as 20 hours which time is not contemporaneous to the time of incident given in the F. I. R. And at the trial by the witnesses which follows that the incident had not taken place at the time as set up by prosecution.
9. The third objection raised by the learned counsel for the appellant would also not prevail for the reasons to be recorded hereunder.
' The findings of the learned trial Court that the confession made by the appellant before Muhammad Saleem Khan M. I. C. Haripur on 14-6-1977 was not the result of coercion and it was made by him (appellant) of his own free will and voluntarily are not correct. According to the admission of the I. O. To the appellant was arrested on 11-6-1977 but was produced by him before the Magistrate on 14-6-1977, i,e, on the 4th day of his arrest, despite the fact that, according to the I.
0. The appellant had shown his willingness to confess his guilt on the day of his arrest, I e. 11-6-1977.
The failure on the part of the I.
0. To produce the appellant on the same day for recording his confession would go a long way to establish that the appellant was not willing to confess the guilt and it was for this reason that he was kept in custody is order to extract confession from him. Thus it has become more than clear that the appellant was in police custody for about four days and the statement of the appellant under section 342, Cr. P. C. That he was coerced and pressurised during this period to make a confession holds water in it. In the circumstances, it cannot be said that it was the result of free will of the appellant and voluntary one. Reliance in this respect is placed on 1975 P Cr. L J 440 and PLD 1977 Pesh.
64.
' Even otherwise the so-called confession does not find any support from the prosecution evidence and other circumstances of the case in that in his confessional statement the appellant deposed that he fired three shots at Mst. Barkat Jan and two at Mst. Resham Jan. On the other hand, it is in the prosecution evidence that the appellant in all fired five shots, one at the door, and two shots each at the deceased persons. This statement of the appellant that he fired three shots at Mst.
Barkat Jan and two at Mst. Resham Jan is also belied by the medical evidence as pointed out earlier in this judgment. In the circumstances, no importance can be attached to the confessional statement especially retracted for, it does not intrinsically ring true and does not find any support from the outside quarter and that it was the result of torture, duress and coercion.
10. As far the recovery of rifle along with five live cartridges at the instance and pointation of the appellant is concerned, the prosecution has miserably failed to prove by producing disinterested and unimpeachable evidence that it was actually recovered at the instance of the appellant an that it was the same gun with which the appellant committed the offence for the following reasons: ' As the recovery memo, Exh. P. W. 5/1 reveals, the rifle in question was recovered on 11-6-1977 in the presence of Abdul Qayum and Malak Aman A. S. I. No date under the signature of these witnesses exists in the recovery memo and therefore, it cannot be said that in fact the recovery was made on the date given under the signature of 1.
0. Moreover Abdul Qayum a witness from the public has not been produced by the prosecution for reasons best known to it The prosecution only produced Malak Aman Khan A. S. I. Who also showed his ignorance whether Abdul Qayum had accompanied them from the Police Station or joined them on, the way. The non-production of Abdul Qayum (P. W.) follows that had he been produced he would not have supported the prosecution version. The recovery memo Exh. P. W. 5/1 has lost its evidentiary value in that it is well settled that the recovery memo should/must be witnessed by two respectables from the locality as has been held by their Lordships in 1979 SCMR 225.
' In the instant case the only person, i,e, Abdul Qayum has been shown from the public to have witnessed the memo but he, too, has not been produced.
So far the recovery of the incriminating articles i,e, the gun and the five live cartridges at the instance of the appellant is concerned, the less said the better in that as has already been held that the genuineness of the recovery memo Exh. P. W. 5/1 is doubtful and further the alleged recovery from the house of Rehmat. Din who is admittedly a sworn enemy of the appellant a is evident from the copy of F. I. R. (Exh. D. X./1) is nothing but a fabrication. Under the circumstances explained above, it will be wrong to say that the recovery of the above articles were effected at the pointation of the appellant and the possibility of its plantation by the prosecution in order to strengthen the case against the appellant cannot be ruled out.
' So far the report of the Ballistic Expert is concerned, it would not take the prosecution case an inch forward, for it has been held in the preceding para of the judgment that the rifle in question has not been recovered at the pointation of the appellant rather it has been planted on him and that the alleged weapon of offence along with the, crime empties and three live cartridge (for test purpose) was sent to the Expert for examination and comparison whose report is in the positive. These articles were sent to the Ballistic Expert on 13-11-1977 which were received in the office of the Director Forensic Science Laboratory, on 3-12.197T whereas the recovery was mad on 11-6-1977. This delay in sending the above articles to the Arms Expert which is absolutely unexplained is fatal to the prosecution case. Reliance in this regard is placed on PLD. 1976 Pesh.
90.
' Over and above the prosecution has not sent the live cartridges which were allegedly recovered at the instance of the appellant for test purposes and instead sent other bullet for test purposes as deposed to by the I.
0., namely, N Muhammad Badshah Khan (P. W. 10) wherein he admitted that he had procured 303 bore live cartridges for test but cannot say from whom. This clearly indicates that the live cartridges recovered allegedly at the instance of the appellant were not sent to the Expert for test purposes. The accumulative effect of the manner in which the recovery was made, its delayed despatch to the Arms Expert and the sending of live cartridges for test purposes other than the one allegedly recovered with the rifle not only knocks the bottom of the case of the prosecution but it reflects, very adversely on the efficiency and honesty of the Investigating Agency. This being the position the report of the Arms Expert loses all its authenticity.
11. As regards the motive, it has also not been proved by the prosecution. The motive advanced by it has been denied by the appellant in his statement recorded under section 342, Cr. P. C. And instead furnished a, different motive. Be that as it may, the motive is a double sharp-edged weapon which can be used on either side. Moreover, the motive alone is not sufficient to connect an accused person for a crime for which the punishment is forfeiture for life.
Before parting with this judgment it is pertinent to point here that though the appellant has been charged under section 449, P. P. C. For committing house trespass and 'a question to this effect was also put to him which was denied by the appellant but surprisingly the learned trial Court has failed to record its finding which we not discuss and dispose of. We have already discarded the testimony of the so-called eye-witnesses and we have acquitted the appellant of the main offence, This charge also falls on this count and the fact that the door of the said kotha on which the appellant is alleged to have fired the first shot before entering the kotha has not been taken into possession to show that actually it bore a bullet hold. The non-possession production of the said door leads one to the only conclusion that it was not fired at at all. Be that as it may, however, the benefit of doubt on either way will be extended to the appellant. He is, therefore, also acquitted of the charge under section 449, P. P. C. Of the appellant and acquit him of the offence.
12. For the foregoing discussion, we accept the appeal, set aside the conviction and sentence convicted for. He is to be set at liberty if not required in any other case cause. Murder Reference is answered accordingly.