MUHAMMAD ZAFARULLAH, J.-Ali Raider aged 25, was found guilty of committing the murder of Anwar Beg. He was convicted under section 302, P. P. C: by Sessions Judge, Attock vide his judgment dated 29-3-1978 and sentenced to death and to a fine of Rs. 500 or in default to undergo R. I. For one year. The fine, if realised, is to be paid as compensation to the heirs of the deceased.
This is an appeal against the conviction and sentence and is being taken up together with the Murder Reference.
2. Anwar Beg aged 28 was found dead by his father Muzaffar Beg P.W. Complainant at 6-30 a.m.
On 12-10-1975 lying on the floor near the engine room of his flour-grinding machine in village Mansura 8 miles away from Police Station, Hasan Abdal. Anwar Beg bad two bullet wounds under his left armpit. Muzaffar Beg lodged F.I.R. Exh. P. F. The same day at 9-00 a.m. And accused the appellant, between whom and the deceased cross criminal cases were pending, as the suspect. In the earlier incident the deceased and his brother Altaf Beg P. W. 4 had given a beating to the appellant in retaliation to an attack made by the appellant on Altaf Beg. Two other persons Sher Ahmad and Aurangzeb with whom the deceased had a fight a year earlier were mentioned also as possible suspects in the F. I. R. But during investigation it was found that they were not connected with the occurrence.
3. S. I. Sajjad Hussain (P. W. 14) after recording the F. I. R. Went to the place of occurrence and prepared the necessary documents relating to the dead body and sent it for post-mortem examination. Dr. Shamsuddin P.W. Conducted the post-mortem examination the same day at 3-00 p.m. He found the following injuries on the dead body: "(1) A fire-arm wound of inlet f circular 2" below the left posterior axillary fold; margins were contused inverted and balckened.
(2) A afire-arm wound of inlet --" circular 2-3/4' behind left posterior axillary fold; margins were contused inverter and blackened.
(3) Abrasion --" x --' at the left elbow posteriorly."
The doctor found a bullet lodged in the left ventricular cavity. It was handed over to the Police in a sealed vial. The Investigating Officer took it into possession alongwith the last worn clothes of the deceased vide memo. Exh. P. B. On 12-10-1975.
4. The appellant was arrested on 21-10-1975 at bus stop of Hasan Abdal. He was carrying radio P. 4 belonging to the deceased and on his personal search the S. 1. Found revolver P. 5 and two bullets P. 6/1-2. The radio was taken into possession vide memo. P. G. And the revolver vide memo. P. H. The revolver was also sealed into a parcel. These recoveries were witnessed by Safdar (given up) and Altaf Beg P. W. The revolver and the bullet recovered from the dead body were sent together to the Fire--arms Expert on 31-11-1975. The expert found the two wedded vide his report Exh. P. N.
5. The appellant was produced before Mr. Abdur Rauf Khan, Magistrate (P. W. 13) on 22-10-1975. He sent him to judicial custody from where he was again produced before him on 23-10-1975. On that day the Magistrate recorded the confessional statement Exh. P.W. 13/1 after observing the necessary formalities. The appellant retracted from his confession at the trial claiming that it was not made voluntarily.
6. In his statement under section 342, Cr. P. C. The appellant admitted that there were cross-cases under section 324, P. P. C. Between him and the deceased, but denied his involvement in the present occurrence and stated that he was implicated falsely by the complainants on account of their enmity with Malik Nawaz, whose servant the appellant was. He also denied recovery of the radio or the revolver from him.
7. The entire case depends on circumstantial' evidence. Therefore, the small bits and pieces of evidence are important in order to determine the guilt or innocence of the appellant. The past enmity between the deceased and the appellant is not denied. They were involved in cross-cases of hurt. This could be the motive for the appellant to commit the murder, but could with equal force be employed to cry false implication. The evidence of motive, therefore, proves only the existence of bad blood between the parties. But the relations of the deceased were not too happy even with Sher Ahmad and Aurangzeb.
8. The trial Court relied on the confession made by the appellant before a Magistrate. He has retracted from that confession since. The Magistrate had taken the necessary precautions against an involuntary confession and, therefore, the confession is not open to attack on that ground. Even a retracted confession is a good piece of evidence, but the rule of prudence has always demanded that a confession, to be acted upon, must find support from other circumstances of the case. A confession may be voluntary, yet not true. It is, therefore, necessary for the Court to see from the circumstances of a case that a confession is also true. It is remarkable that the accused almost never makes a confession in cases where ocular evidence is available, but in other cases is ready and willing to confess his guilt at least before witnesses. In the present case the confession made by the appellant stands alone and finds no support from the circumstances of the case and, therefore, cannot be acted upon.
9. A great deal of reliance has been placed by the trial Court on the recoveries from the appellant.
At the time of his arrest he was carrying a radio belonging to the deceased and also the revolver, which was used for committing the murder. This story, to say the least, is not inspiring. It is quite odd that the accused should be carrying all the incriminating evidence, when he goes about riding buses in the vicinity of the place of occurrence, particularly when earlier he had taken all the precautions, to take revenge, in the middle of the night, avoiding the possibility of any eye-- witness. Then again the only witness Altaf Beg, produced to prove the recovery is an interested witness. Safdar, the independent witness, has not been produced. The evidence of recovery, therefore, cannot be depended upon.
10. The revolver recovered from the appellant and the bullet recovered from the dead body were sent together to the Fire-arms Expert on 31-10-1975. The bullet was recovered on 12-10-1975 and the revolver on 21-10-1975. There is no satisfactory explanation of not sending these articles promptly for examination. Even otherwise the Investigating Officer being in possession of the crime bullet and the revolver at the same time and sending them together to the expert is open to strong objection and raises all kinds of doubts about a fair and honest investigation. The Fire-arms Expert vide his report P. N. Has found that the crime bullet was fired-from the pistol recovered from the appellant. But this is of no consequence as we are doubtful about the correctness of recoveries, and, what follows from it, cannot be any different.
11. Section 510, Cr. P. C. As it stood before its amendment by the Law Reforms Ordinance, 1972, provided for the report of the Chemical Examiner or the Assistant Chemical Examiner to be used as evidence. In 1972 the scope of the provision was expanded to include also the reports of the Serologist, the Finger Print Expert and the Fire-arms Expert. These reports can be used as evidence without calling the expert as a witness, with the proviso that the Court may, if it considers necessary, in the interest of justice, summon and examine the person by whom such report has been made. The Legislature therefore as a general rule has exempted these experts from personal appearance and substantiating their conclusions. This appears to have been done presumably in the interest of expeditious disposal of the cases. While the report of the Chemical Examiner, for which a provision existed in the law even before the amendment of 1972, is not less important than the reports of the other experts, but by comparison the report of the Fire-arms Expert in particular can be crucial. The proper matching of the weapon of offence with the bullet or cartridge, recovered independently, can make all the difference in proving the guilt of the accused. The fact that the framers of the original law did not place the report of the Fire-arms Expert in the same category as that of the Chemical Examiner, speaks of their desire to give the accused a fair opportunity to question its validity. The common experience after the amendment of 1972, however, has been that the Fire-arms Expert is hardly ever summoned. The reports submitted by him merely state his opinion unsupported by any reasons. Such a report cannot satisfy the conscience of the Court particularly where the guilt or innocence of the accused turns almost entirely on its analysis.
In the anxiety to expedite the disposal of cases the interests of justice cannot be sacrificed. In the circumstances of a case, therefore, the Court can refuse :o place any reliance on the opinion of an expert, which is unsupported by any reason. The Government will be well-advised to issue suitable instructions to the experts working under it. A copy of this judgment may be sent to Home Department.
12. In view of the above discussion, we are not satisfied that the accused was guilty of the charge against him. We accept his appeal and acquit him of the charge against him. He shall be set at liberty if not wanted in any other case. The sentence of death is not confirmed.