The appellant has assailed the judgment of the Sessions Judge, Karachi South, whereby he has been convicted under section 302, P.P.C. And awarded sentence of imprisonment for life, fine of Rs.50,000 and in default of payment of fine to suffer rigorous imprisonment for two years more,
2. On 15-8-1988, Dr. Aftab Azizi was M.L.O. Civil Hospital, Karachi. On that day at 5-00 p.m. He received injured Tufail son of Rasool Bux resident of Kalakot, who was in state of unconsciousness and was brought by his neighbour Faiz Muhammad son of Ghulam Qadir (P.W.1). On examination, he found on his mid forehead a lacerated punctured wound, circular in shape of 0.75 c.m. Dia.
Injury was caused by fire-arm and was fresh in duration. The injured was admitted in Neuro Surgery Ward.
At 5-30 p.m. He informed Police Station Kalakot, about the arrival of the injured. The message was incorporated as Entry No.35 in the Station Diary. The copy of this entry was produced by P.W.12 Abdur Rasheed, the Sub-Inspector of Police as Exh.40. He then went to the Civil Hospital and sought permission from Medico-legal Officer in writing for recording statement of the injured and was informed that the injured was not in a position to give statement. At 6-30 p.m. He recorded the statement of the complainant Mst. Haleema, the mother of the injured, under section 154, Cr.P.C. On a plain paper which is Exh.7. He then returned to the police station and incorporated the above statement in F.I.R. No.338/88 and established a case under section 307, P.P.C. Against the appellant.
The said F.I.R. Is Exh.42. After recording the F.I.R. He proceeded to place of occurrence situated on the roof of the house of the complainant, from where he collected the blood and sealed it in a bottle in presence of Mushirs P.W.4 Abdul Ghaffar and P.W.6 Muhammad Saleem Shahzad. He also prepared memo. Of place of occurrence in presence of the said Mushirs and produced it as Exh.43.
He thereafter examined the aforesaid two Mushirs and other witnesses, but did not give the names of the said witnesses on the plea that he had forgotten their names. On 16-8-1988 he received information about the death of the injured Muhammad Tufail. He, therefore, converted the offence into one under section 302, P.P.C. On 17-8-1988, he arrested the appellant from Fakir Muhammad Durra Khan Road on pointation of P.W.4 Abdul Ghaffar. On search recovered a pistol alongwith magazine from the appellant in presence of the said witness and Head Constable Muhammad Siddiq who acted as Mushirs of memo. Of recovery. Blood-stained clothes of the deceased received from Hospital were sent to Chemical Examiner who returned positive report. One led was recovered from the brain substance of the deceased which according to this witness `was sent for expert opinion, but no opinion was recorded for want of sufficient material'. However, no such report has been produced in evidence or any document to show that the said bullet and the pistol recovered from the appellant were ever sent to Ballistic Expert.
P.W.9 Dr. Capt. Liaquat deposed that on 16-8-1988 at 9-00 a.m. When he was posted as M.L.O., Civil Hospital, he was informed by R.M.O. Neuro Surgery Department, that the patient Tufail admitted in that Ward had expired. Post---mortem was conducted at 11-30 p.m. After identification of the deceased by P.W.4 Abdul Ghaffar and Jan Muhammad. The bullet recovered from the brain substance of the deceased was handed over to P.W.10 Khuda Yar, S.I.P. Alongwith clothes of the deceased after sealing the same.
3. P.W.2 Mst. Haleema in her statement under section 154 stated that she alongwith her children lives in Street No.1 of Afshani Gali, Rexer Lane, Karachi. Her sons Muhammad Tahir and Muhammad Tufail had pet pigeons on the roof of their house and so also one Zubair (the appellant) who lives in Street No.2 had them on the roof of the building he lived in. On 15-8-1988, at about 1-30 p.m. When her above sons were feeding pigeons on the roof of their house, the appellant raised cries and told her sons that his pigeon had come to their side. Her son, Muhammad Tahir caught the appellant's pigeon and handed it over to appellant who went back to the roof of his house, from where he again told her sons that his another pigeon had also come to their side. Her sons denied the allegation, whereupon the appellant started abusing her sons and came abusing to the door of her house but she closed the door. The appellant went back to his house abusing and challenging that he would see that they return his pigeon. At about 2-00 p.m. While she and her sons were standing on the roof of their house, appellant came on the roof of his house and tired three shots one after the other at his sons from revolver or pistol and declared that he would not spare them. One bullet hit his son Tufail on his head and Tufail after sustaining the injury fell down. It was alleged that the incident was witnessed by P.Ws. Saleem, Faiz, Ghaffar and Tahir who took away her injured son to the hospital where he was under treatment.
4. After usual investigation, the appellant was challaned and was sent up to stand his trial for a charge under section 302, P.P.C.
Prosecution examined P.W.1 Faiz Muhammad, P.W.2 Mst. Halima, P.W.3 Muhammad Tahir, P.W.4 Abdul Ghaffar, P.W.5 Muniruddin, P.W.6 Muhammad Salim Shahzad, P.W.7 Abdul Salam, P.W.8 Dr. Aftab Aziz, P.W.9 Dr. Capt. Liaquat, P.W.10 A.S.I. Khudayar, P.W.11 Dr. Qamar Din and P.W.12 Abdul Rahseed.
After recording the evidence, the statement of the appellant was recorded under section 342, Cr.P.C. And he also examined himself as his own witness. In his both the statements he denied all the allegations and pleaded that his elder brother Anwar Bhaijan was a Baloch Leader and was working against Narcotics Dealers. His brother had got the husband of Mst. Halima convicted in a narcotic case and, therefore, the complainant party being inimical to the appellant got him falsely implicated in the case.
The prosecution relied on the evidence of P.W.2 Mst. Halima, P.W.3 Muhammad Tahir, P.W.4 Abdul Ghaffar, and P.W.6 Muhammad Saleem Shahzad, medical evidence, recovery of pistol from the appellant and the motive. The learned Sessions Judge believing the evidence of the eye-witnesses, observed that the ocular evidence was corroborated by the medical evidence and that the motive was proved by Mst. 11aleema, the mother of the deceased. With regard to the pistol recovered from the appellant, the learned Judge observed that there was no recovery of empty from the Wardat and as such the said pistol could not be connected with the alleged crime as corroborative piece of evidence and thus the recovery of the pistol from the appellant was considered of no consequence, in so far as charge of murder against the appellant was concerned.
He accordingly convicted the appellant.
5. I have heard Mr. Abdul Qadir Halepota, the learned Advocate for the appellant and Mr. Shaukat Hussain Zubedi, the learned Assistant Advocate-- General Sindh for the State. The learned Advocate for the appellant has urged that:---
(1) although the appellant was known to the complainant Mst. Haleema and other prosecution witnesses, but the F.I.R. Was lodged with unexplained delay of 4-1/2 hours which creates very strong suspicion about the involvement of the appellant in the murder and the circumstance suggest that the identity of the assailant was not known to the prosecution witnesses and the time was consumed in fabrication of the false story to involve the appellant due to enmity, (II)the ocular evidence produced by the prosecution suffers from several inherent defects and is not worthy of any credence and alternatively it is not of that quality which could be taken to be sufficient for conviction,
(III) with regard to motive, it has been contended that the prosecution witnesses are interested because of their relationship with the deceased on the one and enmity on the other hand. No independent evidence has been produced,
(IV) the evidence of Mst. Haleema on the point of motive cannot be accepted as her evidence itself required corroboration she being an interested witness,
(V) the medical evidence cannot corroborate the ocular evidence.
6. The incident is said to have taken place at Zohar prayer time. According to P.W.2 Mst. Haleema incident look place at 2-00 p.m. And she immediately went to the police station to lodge the report.
The police station is admittedly situated at a distance of one kilometre from the place of occurrence. If she had in fact immediately gone to the police station, her statement would have been recorded there without wasting any time in the F.I.R. Book and not at the hospital at 6-30 p.m.
On plain paper. The injured Tufail is also alleged to have been immediately removed from the place of occurrence to the hospital by the prosecution witnesses but the record shows that the injured Tufail was brought to the hospital at about 17-00 hours. No explanation has been given for such inordinate delays in reporting the incident to the police and bringing the injured to the hospital.
There is no explanation as to where the time was consumed by the complainant and the prosecution witnesses. The complainant, P.W.2, Mst. Haleema has asserted that she had immediately gone to the police station and her statement under section 154, Cr.P.C. Exh.7 was recorded at the police station. The aforesaid statement according to P.W.12, Abdul Rasheed was recorded at the hospital. Similarly, it is also not explained why the injured was brought to the hospital by the prosecution witnesses after the delay of about 3 hours and where did the said witness remain all that time. The Civil Hospital is situated hardly at a distance of 3 kilometres from Kalakot. The possibility that Mst. Haleema and the prosecution witnesses consumed the time in fabricating the false story with regard to the incident cannot be ruled out. The appellant was very well-known to all the prosecution witnesses. If the incident was in fact seen by the complainant and other prosecution witnesses and the appellant was in fact the assailant, there would have been no such delay. It is also possible that there was some suspicion about the identity of the assailant. The statement of P.W.2, Mst. Haleema was recorded at 18-30 hours. The time might have been consumed by the said complainant and other prosecution witnesses in mutual consultations.
It is evident from the fact that even at the time when the injured was brought to the hospital i.e. About 17-00 hours, the name of the assailant was not known to them.
Had it been not so, the name of the assailant would have been mentioned to the doctor (P.W.8, Dr. Aftab Azizi). Mr. Shaukat Zubedi, the learned Assistant Advocate-General, has pointed out that Dr. Azizi had referred the case to the Department of Neuro Surgery. At pages 139 and 141 of the original record and proceedings are the documents of the department of Neuro Surgery, marked-Exh.37, wherein at page 141 it is mentioned that the patient was shot by someone which indicates that till then the name of the assailant was not known. In any event the above inordinate delay cannot be brushed aside. It reflects necessarily on the truthfulness of the prosecution case. The learned counsel had relied on a Division Bench judgment of this Court in the case of Rahim. Ali and three others v. The State 1976 P Cr. L J 17. As is in the present case the names of the accused were known to the complainant but the F.I.R. Was lodged after spending an hour at the place of occurrence.
Under these circumstances, it was observed that wasting of that much time was not free from suspicion, particularly when the names of the assailants were known: It was further observed that it was, therefore, not possible to resist the inference that some suspicion was being entertained about identity of the appellant. He also referred to the case of Ghulam Muhammad and another v.
The State 1978 P Cr. L J 420. In that case the F.I.R. Was lodged more than 3 hours after the occurrence. The police station was located in the very village of the parties and was only a mile and a quarter away from the spot.. It was observed that such delay had not been satisfactorily explained on the record and it was clear that the first informant had plenty of time to think of story.
The above cases are fully applicable to the circumstances of the present case.
7. It may be emphasised at the very outset that apart from P.W.1 Faiz Muhammad other prosecution witnesses namely the complainant, her son and two nephews, arc related to the deceased, and therefore, are apparently interested witnesses. There is also another important factor, which need be considered. The husband of the complainant has been convicted in a narcotic case. P.W.4 Abdul Ghaffar was prosecuted in a case wherein 2-1/2 maunds of Charas were hauled up; but was acquitted. P.W.6 Muhammad Saleem Shahzad was challaned in heroin case but was acquitted.
The above are admitted facts. The appellant had examined himself under section 340(2), Cr.P.C.
On oath on 22-2-1990 and deposed that Mst, Haleema and her husband have been convicted in the heroin case and were in Central Jail. Sohail, one of the sons, of Mst. Haleema was also in Central Jail. P.W.3 Tahir, the brother of the deceased was also convicted in a narcotics case and was in jail. He further deposed that the complainant and witnesses were dealing in narcotics and his brother Anwar Bhaijan used to restrain them as he had started a campaign against narcotic dealers. This fact had made the complainant party hostile to appellant's family and he was implicated in the case for the said reason. The above deposition was not challenged by the prosecution in cross-examination. Since the prosecution case is base on ocular evidence alone, it requires close scrutiny, moreso in the above background to determine the guilt of the appellant.
8. P.W.1, Faiz Muhammad has not stated that he had witnessed the incident and on the contrary, deposed that neither he knew as to how the injury was sustained by Muhammad Tufail nor he was told about it by anybody. Similarly, P.W.6, Muhammad Saleem Shahzad also did not project himself as an eye-witness.
According to him when he was going to his house, he saw Faiz Muhammad and Abdul Ghaffar carrying Tufail who had a fire injury on his person and on enquiry, Abdul Ghaffar informed him that Tufail had received fire injury at the hands of the appellant and thereupon he accompanied them to Civil Hospital. The witness does not appear to be truthful in his assertion that he learnt about the injury caused to the victim at the hands of the appellant. P.W.1, Faiz Muhammad as noted above, stated in no ambiguous language that nobody had told him about the manner in which the injury was caused to Muhammad Tufail. If P.W.4, Abdul Ghaffar had disclosed to P.W.6, as to who had caused the injury, this would be within the hearing of P.W.1 Faiz Muhammad, as according to P.W.6 such information was conveyed to him when the above two prosecution witnesses were carrying Muhammad Tufail with injury on his person. Under these circumstances, the evidence of P.W.6 deserves no credence and it would be unsafe to rely on his evidence.
The evidence of P.W.2, Mst. Haleema is pivotal in the prosecution story. However, while deposing in Court, she had given complete go-bye to her statement (Exh.7) which was incorporated in F.I.R. And she set up altogether a new case. The learned Assistant Advocate-General pointed out that if the changed version is taken out from the deposition, nothing will remain to connect the appellant with the offence. This he demonstrated by reading the following cross-examination of P.W.12, Abdul Rasheed, the Investigating Officer of the case:-- "Complainant did not state before me that she went on the roof through the stairs where her children were playing and inquired from them what was the matter. She also did not state before me that the children told her that one pigeon of the accused had come to her roof and on this the accused abused them. She also did not state in her complaint that the sister of the accused also came to her house; and demanded the said pigeon. She also did not state in the report that immediately her deceased son handed fiver the pigeon to the sister of the accused. She also did not state that the accused came to her house and again abused them, and so she closed-her door. She also did not say before me that the accused had administered threats to her----- However, she did not state that Tahir was at the door of the house when accused administered threats to her. She did not tell before me that 'Ghaffar who is my nephew and resides in our house also came on the roof and inquired why Zubair was abusing us'. She also did not state before me that she saw accused going to his root' carrying pistol in his hands. She also did not state before me that `I attempted to bring down Tufail, but when he was near the cemented grills installed on the roof, he was shot by Zubair'. She also did not state that Ghaffar brought Tufail as injured from the roof through stairs. She did not state that immediately thereafter she rushed to the police station for report."
P.W.2, Mst. Haleema while deposing in Court thus made lot of improvements in her version and virtually set up a different case. She had named four persons in the F.I.R. Who had witnessed the incident of Firing, but in her deposition in Court, she dropped the names of two of them and further to paint P.W.4, Abdul Ghaffar as natural witness, she as well as her son, Muhammad Tahir falsely deposed that P.W.4, Abdul Ghaffar was residing with them. Such assertion of these witnesses was falsified by P.W.4, who in his examination-in---chief deposed that he resided ten paces away from the house of Mst. Haleema. While giving the place of his residence, he described his address as Gharib Shah lane, Islam Road, whereas the house of complainant is situated in Rexer Lane, Afshani Gali.
Mst. Haleema stated that Abdul Ghaffar came over to the roof to enquire from her the cause of hurling of abuses by the appellant, which suggest that he heard the voice of the appellant i.e. The abuses, while he was in her house down the stairs, but according to Abdul Ghaffar when he saw a number o children standing in front of the house of Tufail, he made enquiries from them and was informed that the appellant had abused the inmates of the house of Tufail. Mst. Haleema's son had a different story. According to him the appellant had come to their house, abusing them, but her mother closed the door of their house and the appellant went away. He then deposed:-- "In the meantime Ghaffar knocked the door and then he also came up on the roof. Ghaffar is brother in relation and resides in our house. When Ghaffar came on the roof, I and Tufail were on our roof. My mother also came on the roof ---"
Abdul Ghaffar deposed that Mst. Fozia had opened the door and told him to enquire the cause from Mst. Haleema who was on the roof: If Abdul Ghaffar was in the building at that time, there was no occasion for him to knock the door and then come up to their roof. It is also highly improbable that. P.W. Muhammad Tahir while on the roof of third storey could have heard knocking of the door on the ground floor. Evidence of Muhammad Tahir suggests that when. Abdul Ghaffar reached the roof, Mst. Haleema was not there, whereas Mst. Haleema stated that she was on the roof when P.W.4, Abdul Ghaffar came there.
The prosecution witnesses were not consistent with regard to the time of occurrence. According to P.W.1, it was 3-00 p.m. When he saw Tufail being brought from upstairs by Abdul Ghaffar and other persons. According to P.W.2, it was 2-00 p.m. And P.W.3, Muhammad Tahir stated it to be noon time.
But P.W.6, Muhammad Saleem Shahzad would have us to believe that it was Asar time i.e. About 4- 30 p.m.
The entire prosecution evidence is thus full of contradictions and inconsistencies and it would be very unsafe to rely on such evidence.
P.W.1, Faiz Muhammad has mentioned presence of other persons who alongwith Abdul; Ghaffar brought the injured from upstairs. But other prosecution witnesses suppressed the presence 'of other persons at the time of occurrence. The evidence suggests that the incident was witnessed by independent witnesses, who were not listed and examined by prosecution. This renders the prosecution case very doubtful.
9. It was further contended by the, learned Advocate of the appellant that the prosecution story to the effect that the bullet fired from the roof of the house of the appellant hit the deceased standing on the roof of his house, is practically impossible.. The reason is that the house of the appellant is a two-storey house. The roof of the house has fencing wall 5'-2" high with cemented grill of 1'-2" on all the four sides. The house of Mst. Haleema is a three-storey building, also has the similar fencing wall on the roof of the same height of 5'-2" with the cemented grill of 1'-2". This fact had been proved by P.W.7 Abdul Salam, the City Surveyor, who had surveyed both the buildings. The distance between the place from where the appellant is alleged to have -fired and the place where the deceased was standing is 89'-6". The buildings arc not just opposite to each other but in oblique direction. According to Mst. Haleema, none from the either of roofs could sec the person on the other roof. P.W.7 stated that if a person peeps through the holes of grill from the building of the appellant, the person standing on the roof of the building of Mst. Haleema cannot be seen by him.
In my assessm ent, converse is also true. The deceased at the time of occurrence was 12 years old and his height was about 3 to 4 feet. Mst. Haleema deposed that the height of the fencing wall is more than the height of a man i.e. Normal human height; if it be so, it will not be possible for a person standing on the roof of the building of the appellant to aim at the target standing on the roof of three-storey building of Mst. Haleema. Considering the height of deceased, which was at least one feet and six inches less than that of the fencing wall, he would not be at all visible by the person standing at the place from where appellant was alleged to have fired. Looking at the topography .Of the building, distance between them and their location, if pistol is fired from the room of appellant's building, its bullet cannot hit a person on the other roof.
Similarly, looking at the above topography of the two buildings it could not be possible for P.Ws.
Mst. Haleema, Muhammad Tahir and Abdul Ghaffar to see the assailant on the roof of the other building. It may perhaps be possible if one peeps from the cemented grill of, the fencing wall, but none of the said witnesses has so alleged. Evidence of P.W.3, Muhammad Tahir has further rendered the prosecution story unbelievable. He stated that his mother came on the root' and: --- "Firstly, she carried Tufail with him. When I was also being taken, Zubair fired three shots, one of which hit my brother."
This means that Tufail was taken down the' stairs to the house from the roof or at least to the stairs, at a safer place. If this is so, Tufail was anywhere but not near the cemented grill. This version thus makes it all the more impossible to conceive that the bullet fired from the roof of the first floor had hit him, with such force that it pierced into the skull bone and reached brain substance.
10. The learned counsel of the appellant has contended that so far as P.W.& Muhammad Saleem Shehzad is concerned, his evidence - is inadmissible as according to this witness, he was informed by P.W.4, Abdul 'Ghaffar that deceased Tufail was injured by appellant, but PWA, Abdul Ghaffar has not deposed that he had so informed the said witness. He has placed reliance on the case of Khursheed Ahmed v. Kabool Ahmed and others PLD 1964 Kar. 356 wherein following observations were made.-- "There is also on record the evidence of Yasin Rajput P.W.8, who is a member of the Shahpur Chakar Union Council and who oncoming to the scene that evening learnt from .The complainant Khursheed as well as the other Khursheed P.W.11 that the respondents were responsible for the attack made upon them. But, as neither the complainant nor Khursheed Ahmed P.W.11 were asked when giving evidence as to whether they had at all met or spoken to Yasin that evening the evidence of P.W. Yasin as to who were responsible for this attack on the complainant party is clearly inadmissible in law."
The above observations arc fully applicable, to the present case inasmuch as like in the reported case, P.W.6, Muhammad Saleem Shahzad also learnt about the involvement of the appellant from P.W.4, Abdul Ghaffar. In view of the above authority, the evidence of the said witness is to be kept out of consideration. Section 60 of the Evidence Act provides that the oral evidence must in all cases whatever be direct; that is to say if it refers to a fact which could be seen, it must be the evidence of a witness who says, he saw it. The above reason is in addition to the fact that the evidence of this witness is not worth credence for the reasons already stated above.
11. It has been noted above that the so called eye-witnesses are related inter se and they have a grouse against the appellant because of anti-narcotic drive of his brother which lead to conviction of Mst. Haleema's husband. It is the rule of prudence, which has by now ripened into the rule of law that tile testimony of witnesses who are inimical to the accused, should not be accepted without corroboration. In this case, no independent witness has been examined by the prosecution although the incident took place in the thickly populated locality: The only witness from the neighbourhood P.W.1, Faiz Muhammad, has not supported the prosecution case at all. The pistol recovered from the appellant is not found connected with the crime. Thus; there is no independent evidence to corroborate the aforesaid interested and inimical prosecution witnesses. Under these circumstances, it would be very unsafe to rely on the evidence of these witnesses for maintaining the conviction awarded to'-the' appellant.
12. The learned trial Judge has sought the corroboration of the above ocular evidence from the so- called motive i.e. The retention .Of the pigeon of the appellant by the deceased and his brother. In the first instance, this could hardly be the motive for the appellant to kill Muhammad Tufail. If by any stretch of imagination, this is to be treated as a motive, it in too weak to be relied upon.
However, in the case of Nawab and another v. The State 1979 P Cr. L J 736 a Division Bench of this Court observed that the motive howsoever strong, cannot provide corroboration to other pieces of evidence which are themselves infirm and not worthy of credence.
The motive is to be established by an independent source. If the evidence regarding motive comes from the mouth of such a witness whose evidence itself I requires corroboration, the evidence of motive cannot be considered of any corroborative value. In the case of Rasool Bux and another v.
The State 1980 SCMR 225, it was observed that the evidence of motive for the murder had no corroborative value because it came from the mouths of the very witnesses whose evidence required corroboration. Similarly in the case of Nawaz Ali and another v. The State 1981 SCMR 132, it was observed as under:-- "However, the learned Advocate-General drew our attention to the fact that the learned Judges were also of the view that the ocular evidence was `fully corroborated... By the motive...' With respect, we arc unable to agree with these observations of the learned Judges, which are contrary to the evidence on the record. It is true that the eye-witnesses gave evidence of motive, but as the question was of the corroboration of their evidence, their own statements about the motive for the crime could not furnish corroboration of their evidence about the identity of the assailants:'
13. It has been contended by the learned counsel of the appellant that looking into the circumstances of the case, the mere fact that the names-of the eye-witnesses arc mentioned in the F.I.R. Would not be of any help to the prosecution and particularly so when two of such witnesses have belied the F.I.R. Itself by not claiming to be the eye-witnesses and, therefore, such fact would not constitute corroboration of ocular evidence against the appellant. He contended that the learned Sessions Judge had misguided himself by basing conviction of the appellant on the evidence of the so-called eye-witnesses in absence of any corroboration. The submission in essence was that the appellant was entitled to benefit of doubt. The learned counsel relied on the case of Gahno and 4 others v. The State PLD 1964 Kar. 437 wherein it was observed that the mere mention of the names in the First Information Report which was promptly made, cannot constitute corroboration, such as is required by law. In the case in hand, the report was made with considerable delay and, therefore, the above principle will', apply to the case with greater force.
14. The learned trial Court Judge has sought corroboration of the ocular evidence from the medical evidence and has overlooked the fact that the medical evidence does not and cannot corroborate the ocular evidence against the appellant. The medical evidence proves only the factum of injuries and it contains opinion of the Medical Expert as to nature of injuries and the weapon used to cause such injuries. The medical evidence is in no way helpful to prove the involvement of the appellant in commission of the offence. Reference may be made to the case of Machia and 2 others v. The State PLD 1976 SC 695 and Janib and 2 others v. The State 1986 P Cr. L J 583.
15. The learned Assistant Advocate-General did not support the conviction of the appellant. He urged that the weapon recovered from, the possession of the appellant could not be connected with the bullet recovered from the brain substance of the deceased although the prosecution had sent the pistol recovered from the appellant and the aforesaid bullet to the Ballistic Expert but the same has been suppressed.
He further pointed out that Mst. Haleema made massive improvements over her statement under section 154, Cr.P.C., which have been proved by P.W.12, Abdul Rashid. If the improvements made in the statement by Mst. Haleema are taken out from her version of the incident, the entire complexion of the case will change. It, therefore, will not be safe to rely on her statement. He also supported the contention of the learned counsel of the appellant that in fact the assailant was not known and it was for such reason that the delay was caused in lodging the F.I.R. And the time was spent in consultation for involving some person in the case and since they had a cause against the family of the appellant, he had been involved in the case. Relying on the statement of Mst. Haleema P.W.7 Abdul Salam the Survey Report prepared by him and Exh.9 and photograph, he supported the submissions of the learned counsel of the appellant that the injury suffered by the deceased could not be caused by a bullet fired from the rooftop of the house of the appellant.
I, therefore, hold that the prosecution has failed to prove the case beyond reasonable doubt.
The above are the reasons for the short order dated 5-6-1991, whereby the appeal was allowed, and the conviction and sentence awarded by the trial Court was set aside.