' SARDAR MUHAMMAD DOGAR, J.-- Muhammad Younis son of Fazal Elahi, aged 27/28 years, was tried by Sessions Judge, Islamabad, for having murdered Muhammad Nazir, a co-villager, at 8 a.m., on 26-8-1981, in the area of Police Station GoIra Sherif. The learned trial Judge vide judgment, dated 28-2-1984, convicted him under section 302, P.P.C. And awarded sentence of death, plus a fine of Rs,5,000; on recovery of fine, a sum of Rs,4,000 has been directed to be paid as compensation to the heirs of the deceased. No sentence has been awarded in default of payment of fine.
2. The convict has filed appeal. Learned Sessions Judge has made reference under section 374, Cr.P.C. For confirmation of sentence of death. Both the matters are being disposed of by the ensuing judgment.
3. F.I.R. (Exh.P..G.) was recorded at the Police Station on 26-8-1981, at 9 a.m. By Sher Bahadur S.I./S.H.O. (P.W.14), on the statement of Qurban Husain (P.W.11).
' According to the F.I.R., Qurban Husain, accompanied by Muhammad Nazir (deceased) and Abdur Razzaq (P.W.12) boarded Bus No,6607/R.I.D. Of the Government Transport Company from Bus Stand Maira Akku. They were going to Islamabad to pursue the case of Malik Dad, under section 13 of the W.P. Arms Ordinance, 1965, pending in the Court of Raga Magistrate, Islamabad. All three of them took seats on the rear seat of the Bus. When the bus reached at Bus Stand Main Phatak, in the area of village Maira Jaffer, the driver stopped the bus for picking up more passengers. Muhammd Younis appellant entered the bus from the back door. No sooner he saw Muhammad Nazir, he raised Lalkara that he will avenge the murder of his uncle Aslam. He brought out .12 bore pistol from the fold of his Shalwar and fired at the chest of Nazir. The occurrence was witnessed by the complainant, Abdur Razzaq, and given up P.W. Muhammad Nazir son of Khawaja Muhammad.
When the witnesses tried to catch, Muhammad Younis, he threatened them not to come near him and ran away. Muhammad Nazir died at the spot.
' Motive for the occurrence was that one year and four months prior, Muhammad Aslam, an uncle of Younis appellant, was murdered, for which Malik Dad etc. , who was cousin and brother-in-law of Nazir deceased, were challaned.
4. The S.I. After recording the F.I.R. Reached the spot. After preparing inquest report, he depatched the dead body of Nazir for post-mortem examination. He scrapped the blood with cotton from underneath the seat where the deceased was done to death, and took the same into possession vide memo. Exh.P.D. He also took into possession crime empty (P.2) which he had found lying in the Kai weeds towards south western side of the Bund, a little away from the bus, vide Memo. Exh.P.E.
5. The appellant was produced by Khuda Bakhsh of Golra Sharif before the S.I., on 28-8-1981. He was arrested on the same day.
' On 31-8-1981, he led to the recovery of .12 bore pistol (P.1) from under a tree, in the area of Kassi Johad Wali, alongwith three live cartridges, wrapped in a plastic envelop, which were taken into possession vide memo. Exh.P.C.
6. Autopsy on the dead body of Nazir deceased was performed by Dr. Mahmood Khan (P.W.13), at 4-30 p.m. On 26-8-1981. He noted following injury on the body of deceased.
"Five wounds of entry in an area of 3.5 c.m. On left side front of chest at left border of middle of sternum, 6 c.m. From left nipple at 9 o'clock position and 7 c. m. Below suprosternal notch. Burning of edges of wound and skin was present. Holes on the shirt and Salooka were present."
' According to the opinion of the doctor, he had died on account of shock and haemorrhage, caused by the fire-arm injury.
' In cross-examination, the doctor stated that he had received the dead body half an hour before the post-mortem examination, i.e. 4 p.m. He also stated that he had found the stomach of the deceased empty and had noted faecal matter in his intestines.
' Five pieces of lead and a piece of wad recovered from the body of the deceased by the doctor were sealed in a bottle and handed over to the police.
7. At the trial prosecution in all examined fourteen witnesses. Positive reports Exh.P.L. Of the Chemical Examiner and that of the Serologist Exh.P.M. Were also tendered in evidence. Positive report of the Fire-arm Expert Exh.P.N. Was also tendered in evidence.
8. The ocular account was deposed by Qurban Husain complainant P.W.11 and Abdur Razzaq P.W.12.
' Qurban Husain corroborated statement Exh.P.G. Made by him at the time of lodging the F.I.R. The only addition made by him at the trial was, that in the case of Muhammad Aslam, uncle of the appellant, apart from Malik Dad, Allah Ditta had also been challaned.
' In cross-examination, he stated that the Bus was full to capacity and two or three passengers were also standing. He stated that he was occupying the seat on the right side of the deceased while Abdur Razzaq was sitting next to him (complainant). According to him, two persons had boarded the bus before the appellant came into the bus. He admitted that after the shot fired by the appellant, he knew that there was no cartridge in the chamber of the pistol, but still he could not catch the accused, as the accused jumped out of the bus after throwing the challenge. He expressed inability to give the names of the driver and the conductor of the bus; although he admitted that both were present when the police arrived at the spot. In answer to a question, he stated that he had accompanied the deceased only for his sake, although he had no relationship with Malik Dad. He admitted that Allah Ditta, co-accused of Malik Dad, was on bail. He denied the suggestion that the deceased was a history sheeter or was bad character of bundle No,10. He also denied the suggestion that his (complainant's) brother Banaras was also a bad character of bundle No,10. He admitted that he was co-accused of the deceased in a criminal case.
' Abdur Razzaq P.W.12 during examination-in-chief corroborated the statement made by Qurban Husain P.W.11. In cross-examination, he stated that the Thanedar had arrived at the spot between 9-15 to 9-30 a.m. He stated that he had accompanied Nazir deceased, as he was from his brotherhood, but he was not related to him. He further stated that he had connections with Nazir since childhood. He also stated in cross-examination that Younis appellant had no enmity with the deceased prior to this occurrence.
' Both the P. Ws. Qurban Husain and Abdur Razzaq denied the suggestions that they had not witnessed the occurrence and had deposed because of their relationship with the deceased.
' Evidence of recovery of blood stains from the bus and of crime empty (P.2) was deposed by Abdul Waheed P.W.9 and Sher Bahadur, S.I. P.W.14.
' Muhammad Aslam P.W.8 and S.I. P.W.14 had deposed about the recovery of .12 bore pistol (P.1) on 31-8-1981 at the pointing out of the appellant.
' Muhammad Aslam P.W.8 in cross-examination admitted that his sister was married to elder brother of Abdur Razzaq P.W., and sister of Abdur Razzaq was married io his paternal-cousin. He also admitted in cross-examination that he had joined the police on the day of recovery from the police station where he had gone with P.W. Iqbal to inquire about the progress in the murder case, as deceased was from his brotherhood.
9. The appellant during his statement under section 342, Cr.P.C. denied the prosecution allegations. He denied having led to the recovery of pistol P.1. He pleaded innocence and stated that he was involved due to enmity.
' He examined in defence his brother Mehrban as D .W.1; who stated that while the deceased was paternal-cousin of Qurban Husain, he was distant collateral of Abdur Razzaq P.W. He also stated that one Akbar, who was paternal-cousin of Qurban Husain, was murdered, for which his uncle Muhammad Aslam (deceased) and Allah Bakhsh were challaned.
' Zafar Iqbal Constable No,1963, v ,o appeared as D.W.2, stated that according to the record of Police tation Golra Sharif, Muhammad Banaras and Muhammad Nazir deceased ere history sheeters.
According to him, four cases were registered against Muhammad Banaras while five were registered against Nazir deceased. In cross-examination, he admitted that none of them was convicted in any case.
10. Learned counsel for the appellant contended that the incident of murder had not taken place in the bus and the story of murder having been committed in the bus was invented as a subterfuge to make the presence of the witnesses reasonable and probable, that the opinion of the Fire-arm Expert, gas of no consequence in this case, as the empty was not sent to the Officer of the Forensic Science Laboratory till after the recovery of pistol from the appellant. Learned counsel argued that the possibility of the empty having been substituted cannot be ruled out. It was next contended that the appellant had no motive to murder the deceased. It was further contended that it was apparent from the record that the eye-witnesses had not witnessed the occurrence. Learned counsel argued that even otherwise, no reliance should be placed on the statements of these witnesses, as they were, not, only interested but had also inimical background with the appellant.
Learned counsel strenuously argued that even if the presence of these witnesses is accepted, it would be highly unsafe to maintain the conviction of the appellant on their statements without independent corroboration, which is lacking in this case.
11. Learned counsel for the State defended the judgment of the trial Court.
12. We have examined the contentions of the learned counsel for the appellant after going through the record.
' We do not find any substance in the argument of the learned counsel for the appellant that the incident of murder had not taken place in the bus. The argument apparently was based on the fact that the Investigating Officer, during investigation, had not taken the bus into possession. Although it cannot be stated that the action of the Investigating Officer, in not having taken the bus into possession, was not undesirable, but merely on account of the failure of the Investigating. Officer in not having taken the bus into possession, the story of the prosecution that the murder had taken place in the bus, cannot be thrown away.
' The blood stains were collected from within the bus. The number of bus is noted in the F.I.R. If the murder had not taken place in the bus mentioned in the F.I.R., it would have been very easy for the defence to have the case struck off by bringing on record the fact that the bus in which the murder was alleged to have taken place was not on road, on that route at that hour of the day. It was a Government bus and record of the same must have been available in the office.
According to the evidence on record empty (P.2) was taken into possession on 26-8-1981 by Sher Bahadur, S.I. P.W.14. It was deposited in the Malkhana of the Police Station on 28-8-1981. It was sent to the office of the Forensic Science Laboratory on 1-9-1981 and was delivered there on 2-9-1981.
' The recovery of pistol (P.1) at the instance of the appellantl was effected on 31-8-1981. It was deposited in the Malkhana of they Police Station on the same day. It was sent to the office of the Forensi Science Laboratory on 1-9-1981, but was delivered there on 2-9-1981.
' It is obvious that for two days, i.e. 31-8-1981 and 1-9-1981, both the articles, i.e. Empty and pistol, were lying with the police at the Police Station.
The rules require that empties should be sent to the office o the Forensic Science Laboratory on the day they are recovered or at least without unreasonable delay, and so also the fire-arms when recovered as weapons of offence, have to be despatched forthwith. The wisdom behind the rules in this connection obviously is' to avoid possibility of substitution. But in the case in hand rulesf have not been followed.
The Sub-Inspector had no business to keep the parcel of empty with him from 26th to 28th of August, 1981, while the Police Station from the place of recovery as well as from the spot of occurrence was only three miles. Similarly, there was no plausible reason for the police to have kept the parcel of empty in the Police Station till after the recovery of pistol on 31-8-1981. Yet the other alarming fact, in this case is, that according to the entries in the relevant columns of Forensic Science Laboratory report Exh.P.N., both the parcels were received in the Laboratory on 5-9-1981, which belies the statements of the police officials that both these parcels were delivered separately. In the situation noted above, no weight can be attached to the opinion of the 'Are-arms Expert. The case is squarely covered by the. Dictum laid down in Muhammad Shafi etc. v. The State PLD 1968 Lah.869.
Mere evidence of recovery of pistol at the instance of the appellant cannot lend valuable corroboration to the ocular account. Even otherwise, the evidence of recovery of pistol is not confidence inspiring. Muhammad Aslam P.W.8, the only witness from public, is not only related but is also interested. He admitted in cross-examination that he had gone to the Police Station on the day of recovery of pistol to inquire about the progress of the case. That showed the abundant interest he was showing in--prosecution of the appellant.
13. Since we have discarded the evidence of recoveries and the report of the Fire-arms Expert, the case of the prosecution mainly epends upon the testimonies of Qurban Husain P.. W.11 and Abdur Razzaq P.W.12. Qurban Husain is admittedly a cousin and brother-in-law of the deceased. Abdur Razzaq although is not closely related, but he categorically stated that he had connections with the deceased from childhood. Both of them are, therefore, interested witnesses. Their testimonies as such, as argued by the learned counsel for the appellant, have to be sifted with deeper care and caution.
' Qurban Husain during examination-in-chief stated that he had ccompanied the deceased for his sake, although he had no relationship with Malik Dad. This again is an indication of the closeness of the witness with the decease. According to him, he was occupying the seat next to the deceased when he was fired at. The deceased naturall would have fallen in his lap and obviously in that case his clothes/ ought to have been stained with blood. Even if that be not assumed, is his own case that he had attended to the deceased after receipt of jury by him. In that case also, his hands and clothes should have been blood-stained. But neither he claimed that, nor the S.I. Made any note, nor stated at the trial, that he had noted blood on th clothes of the complainant. Yet the other thing which calls for attention is that after having fired the shot the appellant was -holding emptistol. He (appellant) could, therefore, have been easily overpowered, the deceased had been accompanied by at least his kith and kins, e. P.Ws. Although explanation has been given by this witness that could not do so, as the appellant after having issued threats ha umped out of the bus, but this explanation cannot be given much eight, in view of the fact, that even according to him the bus was ull to capacity. In such a situation, it would not have been so easy or the appellant to have jumped out from the bus. The complainant th the help of the two witnesses named in the F.I.R. And others ould have succeeded in catching him, had they been there. Almost imilar is the position of Abdur Razzaq. He was sitting next to the omplainant. The other aspect which adversely affects the credibility this witness is the attempt made by him in cross-examination in iding the fact of his brother Banaras and of Nazir (deceased) being istory sheeters and bad characters of bundle 10.
This fact was not my suggested during cross-examination on behalf of the appellant, ut was also proved by producing Zafar Iqbal, M.H.C. D.W.2, of olice Station Golra Shard, who stated that the deceased and Banaras ere not only history sheeters according to the record, but had also een challaned in four to five cases. It is difficult to visualize that he ould not have known such a glaring aspect of the character and onduct of his own brother Banaras and Nazir deceased, who was not fly his first cousin, but was also his brother-in-law. The obvious ference is that the witness was prone to make a suitable statement without having regard to the truth, even at the cost of being contradicted y record. Yet the other aspect is that both these witnesses expressed inability to give the names of driver and conductor of the bus. Bot these witnesses admitted that they had talked to them and they had remained at the spot till the arrival of the police. We can imagine that the driver and the conductor of the bus would have avoided to become witnesses, taking notice of the fact that generally people avoid coming up as witnesses in such matters. But we cannot believe that the driver and the conductor would not have given out their names. The reason of their showing inability to give the names of the driver and the conductor can only be that they had not met them.
The motive stated for the occurrence is also doubtful. According to the complainant, the appellant had done Nazir to death to avenger the murder of his uncle Aslam, for which Malik Dad and Allah Ditta were facing trial. Allah Ditta was on bail. The natural grievance of the appellant would be against the murderers of his uncle than the relatives of a murderer. If he had any intention of taking revenge, Allah Ditta was available to him, and for having revenge from Malik Dad, he could wait the result of that case. The statement of Abdur Razzaq in this regard is also important. He stated that Younis appellant had no enmity with the deceased earlier to this murder.
13. As a result of the above discussion and analysis of the prosecution evidence, we are of the view, that it would be highly unsafe to maintain the conviction of the appellant on the uncorroborated testimonies of the two witnesses, who are not only interested, but whose statements also bristles with doubts. The appellant is, therefore, given the benefit o doubt and acquitted. He shall be released forthwith, if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.