BASHIRUDDIN AHMAD, C. J---Farhatullah (18) and his elder brother Sibghatullah (20) were tried for the murder of Mehr Hussain Shah, in furtherance of their common intention, on July 9, 1970, by the Sessions Judge, Derajat Division, D. I. Khan, who acquitted Sibghatullah, but convicted Farhatullah under section 302, P. P. C. And sentenced him to suffer death.
2. The condemned person appealed and the case is also before us on reference under section 374, Cr. P. Code, for confirmation of death sentence. This judgment will dispose of the appeal as well as the reference.
3. The story for the prosecution, briefly narrated, Is that some time before the occurrence, under consideration, the deceased along with others robbed the father of the appellant and also dishonoured him. He reported the matter to the police and a case was registered, but the matter was eventually compromised. The appellant and his brother, however, decided to avenge the insult and on the eventful day, at 13-15 hours, they went armed with'shot guns to the hotel of Mirza Khan In Tank city where the deceased was present. The appellant fired twice at the victim while Sibghatullah kept standing at some distance. The deceased was mortally wounded and died. The assailants escaped in the direction of their house. Mohsan All Shah, Mosam Khan and others including Murtaza Shah, father of the deceased, witnessed the occurrence. The report regarding the occurrence was made by Murtaza Shah at Police Station Tank city at 13-50 hours and was taken down by A. S. I. Sher Nawaz Khan (P. W. 13). He prepared the injury-sheet, drew up the inquest report and then despatched the dead body to the mortuary for post-mortem examination. He visited the spot, took into possession blood-stained earth and a piece of wooden plank which was also blood-stained and seated the sama into a parcel. He recovered two empty shells Exh. P. 1, smelling of fresh discharge from the spot, and sealed the same into a parcel. Pir Ghulam (P. W. 6) witnessed the recoveries in addition to the Investigating Officer. The appellant was no where to be found. The Investigating Officer took into possession a D. B. Shot gun with a copy of license from Abdullah Khan, father of the appellant, but for reasons best known to the police the same was returned under the order of Assistant Commissioner, Tank. Later on, the police took into possession from Abdullah Khan the five shot 12 bore shot gun which was sealed into a parcel, vide memo. Exh.
P. L.
The appellant absconded and a warrant issued under section 204, Cr. P. Code, for his apprehension was returned unserved. The five shot .12 bore gun and the empties which were recovered from the spot were sent to the Ballistics Expert, but he found that the same were not fired with this gun. The recoveries, therefore, in no way, advance the prosecution case.
The appellant was arrested on 9-9-1970.
4. Dr. Adam Khan (P. W. 1) performed post-mortem examination on the dead body of Mehr Hussain Shah deceased on July 9, 1970 at 3-45 p.m. And found the following injuries:-
(1) A fire-arm outlet wound 1" x 1" on the right temple. Brain matter was attached on the side.
(2) A fire-arm inlet wound --" x --" x 1" below and behind the left ear.
(3) A grazed wound 1" x --", just below Adams apple. Charring marks were present around the wound.
(4) One inch circular wound on the tip of left shoulder.
Death, in the opinion of the doctor, occurred due to injuries to the vital organs like brain, which caused shock and haemorrhage.
5. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He admitted the incident which served as a motive. When asked to explain why the eyewitnesses deposed against him, the appellant made a statement which runs:- "Murtaza Shah is the father of the deceased. Mosam P. W. Is a fast friend of the deceased and moreover on inimical terms with my family. Inayatullah P. W.'s father and uncle had committed the murder of one Faizu, a distant relation of ours and they were convicted and sentenced to 14 years' imprisonment each. My uncle Doctor Abdul Hamid appeared as P. W. In that case. Pir Ghulam's father is indebted to my father in Rs. 300-00. My father had been demanding the amount of the debt which has not been paid so far. Besides, he, Inayatullah, Abdus Sattar are giving evidence under the pressure of police"
When called upon to state if he absconded after the occurrence, the appellant submitted as under:- "My school closed for summer vacations and I went to Makin in the tribal territory to Mir Nawaz a friend of my father for spending the summer there. When I came bade on 9-9-70, and learnt about the occurrence, I presented myself to the Assistant Commissioner, Tank for arrest."
6. Defence evidence was not called.
7. At the trial, Murtaza Shah (P. W. 5), Pir Ghulam (P. W. 6), Inayatullah (P. W. 7), Abdul Sattar (P. W. 8) and Mosam Khan (P. W. 9) furnished direct evidence. Murtaza Shah is the father of the deceased.
Inayatullah, Abdul Sattar and Mosam Khan have their shops in the locality. Mosam Khan worked as a tailor and claimed to be a friend of the deceased. Murtaza Shah had left in the company of the deceased for his fields outside Tank city. The deceased stayed back in the bazar at Tank. At about dopehrwela, Murtaza Shah was returning to his house when he heard firing and saw the appellant running armed with a shot-gun in a street in which there is the girls school. Sibghatullah was seen standing in the lane, , but he was empty-handed. Mehr Husain Shah was lying wounded on the plank outside the shop of Mirza Khan. The evidence of Pir Ghulam, Inayatullah, Abdul Sattar and Mosam Khan is unanimous that the deceased was sitting on a wooden plank outside the shop of Mirza Khan in Sabri Bazar and was having a drink of water when the appellant fired at him with a shot-gun from a distance of 5 or 6 paces. The deceased was bit and the appellant escaped into the street in which the girls school is situated. The deceased expired shortly after the occurrence and his dead body was removed on a cot to the police station. Murtaza Shah also deposed about the motive and said that two years prior to the occurrence, which is the subject-matter of this case, the deceased had beaten the father of the appellant and remained in the lock-up for a fortnight.
Later on, however, the parties compromised.
8. The trial Judge held that Murtaza Shah was not present when the occurrence took place. He relied on the evidence of Pir Ghulam, Inayatullah, Abdul Sattar and Mosam Khan. The abscondence by the appellant was considered as corroborative evidence of his guilt and he proceeded to convict and sentence the appellant to death.
9. For the appellant, it has been strenuously argued that the conviction is improper inasmuch as it is based on evidence of witnesses, who were not named in the first Information report except Mosam Khan, but he is a person of dubious character. So far as Pir Ghulam, Inayatullah and Abdul Sattar are concerned, it is correct that they were not mentioned as eye--witnesses in the report which Murtaza Shah had made to the police after the occurrence. The consideration which prevailed with the trial Court to accept their evidence and act on it was that they had their shops in the locality-and as such they were natural witnesses. Mr. Muhammad Ishaq Khan Kundi, learned counsel for the appellant, contended that the occurrence having taken place during the hottest part of the day at Tank in the month of July, the likelihood was that none of witnesses had seen the occurrence, but were made to depose under police pressure. Pir Ghulam is an Ice Seller and had given to the deceased water for drinking before the unfortunate man was shot dead. Pir Ghulam says that he saw the appellant firing the second shot at the victim from a distance of 5 or 6 paces.
The witness candidly admitted that shops in the vicinity were open, but as it was summer some of the shopkeepers were asleep while others were inside their shops. The witness admitted further that the eye-witnesses including himself were detained at the police station and examined till 1-00 a.m. And were tutored to make a statement as dictated by the Sub-Inspector Police, who produced them before a Magistrate on the next day and got their statements recorded. Pir Ghulam said that he was not given any beating, but Abdul Sattar P. W. Was slapped by a policeman. Abdul Sattar corroborated the allegations of highhandedness on the part of the police as narrated by Pir Ghulam. Abdul Sattar claimed to have seen the occurrence from inside his shop and did not come out on the road side. He says that he did not see any one in the bazar at the time of firing. We find from the statement of Inayatullah that he is not an independent witness. He admitted that his father and uncle were convicted for the murder of one Faizu, but he was unable to say if Faizu is a relative of the appellant. The witness was not in a position to deny if Abdul Hamid uncle of the appellant appeared as an eye-witness against his father and uncle. Inayatullah made the statement to the police on the next day when he was called by the D. S. P. To the shop of Mirza Khan. We, therefore, do not consider it safe to rely on the evidence of witnesses who were subjected to duress by the police and coerced to make statements in support of the prosecution case. They were pinned down to those statements when they were produced before a Magistrate on the following day, who examined them under section 164, Cr. P. Code.
10. The conduct of the police in this case in detaining witnesses at the Thana for the night, examining them again and again till past mid-night in the light of prepared statements by the Sub-Inspector was nothing short of badgering of witnesses who were made to repeat the statements which the Sub-Inspector had put into their mouths and this Court cannot accept this type of evidence by tolerating such malpractices on part of the police: as it would encourage the use of such methods by unscrupulous police officers in outlying places like Tank. No sanctity is attached to statements thus obtained from persons who have shops in the vicinity of the place of occurrence. There cannot be any guarantee that statements so made represented the truth and that the witnesses who were made to give evidence by such methods had actually seen the occurrence to which they deposed. Once the conclusion is reached that the Investigating Officer was guilty of procuring evidence by these methods, the taint involved makes the entire evidence in the case wholly unreliable. The conduct of the police officer responsible for it was most repre-- hensible.
11. The father of the deceased implicated Sibghatullah, a brother of the appellant, as well as the crime committed in his report to the police. He credited him with a shot gun. In his statement, at the trial, Murtaza Shah said that Sibghatullah though present at the time of the commission of the crime was empty-handed. There was no sense in Sibghatullah being present without any arm. Pir Ghulam belied Murtaza Shah by stating that Sibghatullah was not present with the appellant at the time of the occurrence. Inayatullah also said so in his statement and so did Abdul Sattar. It goes to prove that attempt was made in this case at false implication of Sibghatullah for the murder of Mehr Hussain Shah by his father. The conduct of Inayatullah in not informing the father of the deceased about the assailants of Mehr Hussain Shah is not unnatural. The witness clarified that neither the father of the deceased asked him nor did he inform Murtaza Shah of his own about the assailants, but proceed--ed to his house and did not return to the spot till the next day.
12. We do not consider it safe to rely on the evidence of Pir Ghulam, Inayatullah and Maul Sattar because none of them was named in the first information report as a witness and, secondly, their statements were extorted from them by the police considering them as natural witnesses having shops in the locality irrespective of the consideration whether they did or did not see the occurrence.
13. We are thus left with the statement of Mosam Khan, who claims to be a friend of the deceased.
Mosam Khan and Mehr Hussain Shah deceased are birds of the same feather. Inayatullah described Mehr Hussain Shah as Badmash and added that he was not a Badmash of dangerous type. Mosam Khan admitted that he along with Mehr Hussain Shah was convicted for injuring Abdul Aziz and was sentenced to imprisonment and fine. Mosam Khan was also convicted in a case under section 324, P. P. C. He admitted that he was convicted for an offence under section 377, P. P.
C. And was sentenced to undergo rigorous imprisonment for a period of 2 years. Proceedings under section 110, Cr. P. C. Were pending against Mosam Khan when he appeared to give evidence in the present case. It is also in his statement that he was challaned under the West Pakistan Control of Goondas Ordinance, 1959. In view of his antecedents and past association with the deceased, it was not at all difficult for the maker of the first information report to have named Mosam Khan as a witness. Murtaza Shah could depend on Mosam Khan for giving evidence in the case irrespective of the fact whether he had or had not seen the occurrence. We do not consider it safe to accept the statement of Mosam Khan. The prosecution did not examine Mohsan Ali as a witness who was named in the first information report. There is no explanation why the prosecution did not produce Mirza Khan at whose shop the occurrence had taken place. Mirza Khan was admittedly present at the time of the occurrence.
14. There is no corroboration of what the witnesses stated by evidence from an unimpeachable source. The police 'took into possession the shot gun, but later on for reasons best known to them, the weapon which was considered to have been used in the commission of offence, was returned under the orders of the Assistant Commissioner and the other gun which was seized did not match the empties recovered from the spot. In this state of the evidence, we consider it unsafe to maintain the conviction of the appellant.
15. In the result, the appeal succeeds. The conviction and the sentence passed on Farhatullah is hereby set aside and he is ordered to be acquitted. The sentence of death is not confirmed. The appellant is in jail and we direct that he be released forthwith provided always that his detention is not required in connection with any other case.