SYED ABDUR RAHMAN, J.- Accused Ismail @ Mota was challaned by Police under Section 302 PPC.
2. On 17-9-1988 at about 3.50 A.M. Sub-Inspector Muzaffar Hussain, who was Duty Officer at Mithadar Police Station, Karachi, received a telephonic message from Dr. Hamid Ali, Medico-Legal Officer, Civil Hospital, Karachi about the arrival of deceased Hanif in an injured condition alongwith Zakaria. Hence he made such a note in the Daily Diary of the Police Station and went to Civil Hospital. He asked the Medico-Legal Officer in writing for permission to record the dying declaration of Hanif. The Medico-Legal Officer gave it in writing that the deceased was not fit to give a statement. S.I.P. Muzaffar Hussain also himself saw the injured and found that he was lying un-conscious and was incapable of giving a statement. He could not locate the persons, who had brought the injured to Civil Hospital, due to rush. He then proceeded to return to the Police Station.
On the way he received information that the injured had expired in the Hospital. He, therefore, went back to Civil Hospital. He then inspected the dead body and held inquest and prepared Mashirnama and the Inquest Report. He gave a letter for post-mortem examination of the deceased. He then took down the F.I.R, of complainant Abdul Ghaffar @ Appa on a plain paper at 5.00 A.M. And took it to the Police Station and incorporated it in 154 Cr.P.C. Book at 6.00 A.M. The F.I.R, disclosed that, deceased Hanif was real brother of complainant Abdul Ghaffar. On 17-9-88 at about 3.00 A.M. P.W - Mohammad Iqbal came to the house of the complainant and told him that accused Ismail @ Mota had fired with pistol or revolver at his brother Hanif in the street of Rabia Mansion, Old Town and had seriously injured him. Hanif was removed by Zakaria and Abdul Ghaffar s/o Ismail towards Civil Hospital. On enquiries the complainant came to know that Hanif had prohibited Ismail @ Mota from smoking Heroin in the street. The complainant also went to Civil Hospital. On reaching there his brother Hanif told the complainant that Ismail @ Mota had fired from pistol or revolver at his chest. Thereafter Hanif became un-conscious and died at about 4.30 A.M. The incident was witnessed by Mohammad Iqbal, while Hanif had made dying declaration before the complainant, Zakaria and Ghaffar that Ismail had caused him fire-arm injuries with intention to kill him. SIP. Muzaffar Hussain then sent the F.I.R, to SIP. Nazeer Minhas for investigation and himself went to the scene of offence. SIP. Nazeer Minhas also reached the scene of offence and inspected the same on the pointation of P.W. Mohammad Iqbal at 6,30 A.M. He found an empty shell of 30 bore lying in front of Tawakkul Manzil which was Secured by him, in presence of Mashirs Zakaria and Mohammad Amin. At about 7.40 A.M. They arrested accused Ismail @ Mota. On 20-9- 1988 SIP. Nazeer Minhas interrogated the accused, who volunteered to produce the crime weapon.
He then led SIP. Nazeer Minhas in presence of Mashirs SIP. Muzaffar Hussain and H.C. Mohammad Iqbal to the bath-room of his house and from an empty tin of Dalda took out and produced one pistol and one live-bullet which were secured in their presence. On 21-9-1988 the investigation was transferred to Inspector Riaz Ahmed Qureshi on the order of Sr, Supdt, of Police (S.S.P.) South, Karachi. Hence he handed over the papers to him. SIP. Nazeer Minhas claimed to have recorded 161 Cr.P.C, statements of P.Ws. Mohammad Iqbal, Abdul Rahim, Zakaria, Abdul Ghaffar s/o Ismail and Mohammad Amin. These witnesses, however, alleged that their statements were not recorded by SIP. Nazeer Minhas. Inspector Riaz Ahmed Qureshi also did not find 161 Cr.P.C, statement of the witnesses in the Police papers which were handed over to him. He, therefore, made enquiries from them and recorded their statements afresh on 25-9-1988. He then got recorded 164 Cr.P.C, statements of these witnesses by a 1st Class Magistrate and challaned the, case. Chemical Analyser's Report was received on 16-1-1989 which showed that the clothes of the deceased were stained with human blood. The report of the Ballistic Expert was received on 9-2-89. It was to the effect that the empty shell recovered from the scene of offence matched with the pistol produced by the accused.
3. A charge was framed against the accused by IInd Addl. Sessions Judge, South, Karachi under Section 302 PPC. To which he pleaded not guilty and claimed to be tried. In his statement under Sec. 342 Cr.P.C, the accused has denied to have murdered Hanif. He has also denied that he produced the pistol before the Police. He alleged that deceased Hanif was killed by the relatives of a woman, who was enticed away by the complainant. He has produced the certified copies of F.I.R, and depositions in the case filed by the deceased against the relatives of that woman for having fired pistol shots at him on 15-11-1984 in an attempt to murder him and thereby caused him injury.
That case was still pending when Hanif was murdered. Since the accused was a poor man, he was falsely implicated in this case to save the relatives of that woman. The accused has also given his statement on oath. He has, however, not examined any other defence witness.
4. On behalf of the prosecution followings witnesses have been examined:- 1) Complainant Abdul Ghaffar ... Ex.-5.
2) P.W. Iqbal ... Ex.-9.
3) P.W. Mohammad Zakaria ... Ex.-12.
4) P.W. Abdul Rahim ... Ex.-15.
5) P.W. Abdul Ghaffar s/o Ismail ... Ex.-16.
6) Dr. Hamid Ali ... Ex.19.
7) H.C. Mohammad Iqbal ... Ex.-23.
8) SIP. Muzaffar Hussain ... Ex.-28.
9) SIP. Nazeer Minhas ... Ex.-34.
10) Mohammad Ramzan, City Surveyor. ... Ex.-37, and 11) D.S.P. Riaz Ahmed Qureshi ... Ex.-41.
Main points for determination in this case are:- 1) Whether Hanif @ Maya had died as a result of fire arm injuries?
2) Whether accused Ismail @ Mota committed murder by intentionally causing death of Hanif @ Maya?
My findings on these points are as follows:- 1) Yes.
2) Not proved.
POINT NO. 1.
5. There is no dispute on this point. Even the defence has not challenged this aspect of the prosecution case. There is ample prosecution evidence on this point. The most pertinent evidence on this point is that of Dr. Hamid Ali, Medico- Legal Officer, Civil Hospital, Karachi. He has stated on oath that the deceased was brought to him in an injured condition, while he was on duty in Civil Hospital, Karachi at 3.50 A.M. On 17-9-1988. He had penetrating wound C.M. In Diameter (wound of entry) on right hypochondrium in mid clavicular line with wound of exist back of the chest at same level 1 C.M. In Dia-metter with corresponding holes in the shirt. He was B.P. Less and pulse-less with profused bleeding. The injured appeared to have been caused by a fire arm. The injured expired at 4.30 A.M." He then conducted post-mortem examination on the dead body and found the following damage addition to the external usuries mentioned above:- "The right side chest cavity was full. Of blood. The bullet travelled in between 7th & 8th ribs after passing the right dome of liver and diaphragm into the right lung lower lobe and after perforating the right lung lowered lobe left the chest cavity from the wound of exit. Left side chest cavity was empty no bleeding was seen. Left lung was adherent to the chest wall, in middle and upper lobe area. A hard mass attached with the vertebral column and ribs was palpable. This mass was intact hard and difficult to cut. X-rays shows metallic foreign body without fresh damage to the left lung and chest cavity, it means old involvement. The abdonial cavity was full of blood and through and though tear was seen on right dome of the liver due to the path of the bullet. Rest of the all internal argans were healthy and pale.
The cause of death was shock and haemorrhage due to fire arm injury damaging right lung and liver leading to cardio respiratory failure and death."
I, therefore, hold this point in the affirmative.
POINT No. 2.
6. Legally speaking the F.I.R, in this case is the entry in Roznamcha (Daily Diary) Ex.-36, which was taken down on receipt of telephonic message given by Dr. Hamid Ali, Medico-Legal Officer, Civil Hospital, Karachi, According to this report the deceased had received fire-arm injuries in front of the shop of Siddique Halawi in Old Town and was brought by Zakaria. It does not mention the names of Iqbal or Abdul Rahim, nor does it say that the accused had caused injuries to deceased Hanif. Admittedly this was the first information which was conveyed to the Police. No doubt this haring been given by the Medico-Legal Officer, who ordinarily was not expected to solicit information of the name of the accused or the eye-witnesses and was, therefore, not supposed to convey the same at the time of informing the Police, but since he has been given the details of the place where the deceased was injured, with what weapon he was accompanying him, the possibility of mentioning the name of the accused and the eye-witnesses to him, if any, was not unexpected. For practical purposes document Ex. 6 is the F. I.R. It was taken down by SIP. Muzaffar Hussain on plain paper at the instance of complainant Abdul Ghaffar s/o Abdul Chani. The offence was committed at 3.0 A.M., while the F.I.R, was lodged in 154 Cr.P.C. Book at 6.00 A.M., although the Police Station is only 1/2 K3. M. Away from the scene of offence. The delay of three hours in lodging the F.I.R, becomes more suspicious 0n account of the fact that the complainant claims to have reached the Hospital while the injured, according to him, was still alive and in senses, and capable of making a dying declaration. Not only that, but even SIP. Mazaffar Hussain also reached the Hospital at 4.15 A.M., while the injured expired at 435 A.M. Hence when the S.I. P, and the complainant both were there' at the Hospital, the delay in recording the F.I.R, which has not been explained at all, creates doubt about its authenticity and the possibility of deliberations regarding the case cannot be ruled out. In the case of Ghulam Nabi Shah vs. Crown (1969 SCM R. 629) it was held that the delay in lodging the F.I.R, leads to the possibility of deliberation and the mention of the names of the eye-witnesses therein is no guarantee of the truth of their statements. In the case of Gulzar Hussain vs. The State (1985 P.Cr.L.J. 1329) a learned Single Judge of this Court held that five hours delay in lodging the F.I.R, had created grave mis-givings about the involvement of the accused.
7. The ocular evidence in this case is furnished by P.Ws. Iqbal and Abdul Rahim. Their evidence is to the effect that they were partners in construction word. On 17-9-1988 at about 3.00 A.M. They were going towards Kharadar. When they reached Kaghzi Bazar, they saw the deceased and the accused quarreling with each other. The accused took out a pistol/revolver and fired twice at Hanif, who fell down on receiving injuries. Accused Ismail @ Mota then ran away. Admittedly both the P.Ws. Iqbal and Abdul Rahim are chance witnesses. Iqbal resides at Kalri, while Abdul Rahim resides at Keamarri. It was not expected, in the ordinary circumstances, that they would pass from near the scene of offence at that odd hour of the night. They have claimed to be partners in construction work and have alleged that they were returning from their work together. This also seems to be improbable. Ordinarily, construction work is over by sun-set and even earlier. Apart from that Abdul Rahim even in the title of his deposition has shown "fishing' as his occupation. In his cross- examination. Iqbal has admitted that he was not a Government Contractor, that he had no Registration Certificate as building contractor and that he had no licence from K.B.CA. For constructing buildings. In order to minimise the effect of these admissions made by him, he voluntarily has stated that he was a very small building contractor. Abdul Rahim has admitted in his cross-examination that he was doing fishing business and has got his own fishing launch. He has admitted that Buses do not go to Keamari after 9-10 P.M. Though be-has denied the suggestions that launches do not go to Gazara Island, from Keamari after 9.00 or 10.00 P.M. Where he is residing. About the partnership with Iqbal in construction work he has admitted that there was no partnership Peed executed, not could he produce any document to show that he was carrying on business of building construction. Hence it is not believable. The admissions made bey both these witnesses in their cross-examination, show that they are so ignorant of the locality where the-offence had taken place that it becomes difficult to believe that they had been going there off and on and therefore, the possibility of their having witnessed the incident is altogether unbelievable. P.Ws. Iqbal and Abdul Rahim have stated in their cross-examination that they cannot give the number of the plot where the incident had taken place. They also stated that they cannot give the name of any .Other building at the scene of offence. They also could not give the name of the street in which the incident had taken place. It is admitted position that the scene of offence was situated in a thickly populated area where the residents remain present till late in the night, playing cards and chit-chattings and therefore, the failure of producing any eye-witness from the locality is fatal to the prosecution case, particularly when the deceased and his b others and other relatives' houses were also situated at the scene of offence. P.Ws. Mohammad Iqbal and Abdul Rahim have been put to thorough cross-examination by the Defence-Counsel and their evidence was altogether shattered. There are material improvements, inconsistencies and contradictions in the statements of complainant and the prosecution witnesses which go to the root of the prosecution case. Some of them are mentioned here. Complainant Abdul Ghaffar @ Appa has stated in Court that his brother Hanif on enquiry told him in presence o P.Ws. Iqbal, Zakarya and Abdul Ghaffar s/o Ismail that he had asked Ismail @ Mota note to smoke Heroin', which is an improvement on his 154 Cr.P.C, statement. It is proved through P.W.-8 SIP. Muzaffar Hussain in the following words:- "Complainant Abdul Ghaffar @ Appa had not specifically stated in his 154 Cr.P.C, statement that his brother Hanif in presence of P.Ws. Iqbal Zakarya and Ghaffar n his enquiry had told him that he asked the accused not to smoke Heroin."
P.W. Iqbal had stated in his 164 Cr.P.C, statement that when he and complanar Abdul Ghaffar reached the Hospital, Hanif was in full senses and had informed them that accused Ismail @ Mota caused him injuries, while this fact is not available in his 164, Cr.p.C. Statement. Moreover, P.W. Iqbal has not stated before Mithadar Police in his 161 Cr.P.C, statement that deceased Hanif @ Maya was his friend and had come to meet him at his house and that his friend Abdul Rahim also came at his house and that due to late hours of the night he and Abdul Rahim accompanied the deceased to leave him at his house and that when at about 3.00 A.M. They reached Dewan Culia Street, Old Town, accused Ismail was standing in the street in front of his house. P.W. SIP. Nazeer Minhas falsified his statement by saying that on enquiry P.W. Iqbal told him that he was resident of Kalri and that deceased Hanif @ Maya was his friend and had come to see him at his house and that he had recorded the same. He also stated before SIP. Nazeer Minhas that his another friend Abdul Rahim also came to his house and that due to late hours he and Abdul Rahim accompanied the deceased to leave him at his house. He further stated that P.W. Iqbal also stated that accused Ismail went up-stairs and closed the door from inside. P.W. Iqbal has denied to have stated in his 161 Cr.P.C, statement that as a result of injuries deceased Hanif @ Maya went un-conscious and subsequently died, while in his 161 Cr.P.C, statement he stated that as a result of injuries deceased Hanif went unconscious and subsequently died at 4.30 A.M. Iqbal has stated before Inspector (now DSP) Riaz Ahmed Qureshi in his 161 Cr.P.C, statement that on 17-9-1988 SIP. Nazeer Minhas had recorded his statement under Sec. 161 Cr.P.C, in this case, while in his 161 Cr.P.C, statement before D.S.P. Riaz Ahmed Qureshi he stated that SIP. Nazeer Minhas had not recorded his 161 Cr.P.C, statement P.W. Mohammad Zakaria stated in his 161 Cr.P.C, statement that he was residing opposite Good-Luck Haleem, Mithadar, Karachi, but he has not stated so in his 161 Cr.P.C, statement before SIP. Nazeer Minhas. P.W. Zakaria has also stated in his 161 Cr.P.C, statement that deceased Hanif came raising cries and bleeding and that due to excessive bleeding he went un-conscious, while in his deposition in Court he has denied this fact and his 161 Cr.P.C, statement to the above effect was proved through SIP. Nazeer Minhas. P.W. Zakaria did not state in his 161 Cr.P.C, statement at any time that P.Ws. Iqbal and Abdul Rahim had come there at any time from the time of incident till a Mashirnama of inspection of dead-body and the inquest report was prepared by the Police.
P.W. Abdul Rahim stated in his deposition that deceased Hanif had made dying declaration before all of them that accused Ismail @ Mota had fired at him and had injured him, but he has not stated so in his 164 Cr.P.C, statement, he has denied the fact that his 161 Cr.P.C, statement was ever recorded by SIP. Muzaffar Hussain or SIP. Nazeer Minhas or any other Police Officer of Mithadar Police Station, on 17-9-1988 or at any other time.
8. It is admitted and rather forcefully asserted by both the P.Ws. Mohammad Iqbal and Abdul Rahim that their 161 Cr.P.C, statements were not recorded by SIP. Nazeer Minhas on 17-9-1988, but the same were recorded for the first time by Inspector (now D.S.P.) Riaz Ahmad Qureshi on 25-9- 1988. Inspector Riaz Ahmed Qureshi has stated in his deposition that when he received the Police papers from SIP. Nazeer Minhas, who was earlier investigating this case, he did not find the 161 Cr.P.C, statements of these witnesses, nor of P.Ws. Zakaria, Abdul Ghaffar s/o Ismail and Mohammad Amin. The witnesses, who were produced by the complainant before him, also told him that their 161 Cr.P.C, statements were not recorded before that. He, therefore, recorded their 161 Cr.P.C, statements. It may be pointed out that when the bail application of the accused was being argued in High Court, it was contended by the defence counsel that there was delay of 8 days in recording the statement of the eye-witnesses as well as those of the dying declaration, then it was alleged by the prosecution that SIP. Nazeer Minhas had recorded their statements, but the same were removed from the file of Police papers and were sent to the office of Sr. Superintendent of Police, Sought, Karachi. These statements were then brought and produced in the Court. Although those statements are not inconsistent with the 161 Cr.P.C, statements recorded by Inspector Riaz Ahmad Qureshi, except with regard to the scene of offence and one or two other inconsistencies, but the fact that they had disappeared from the file of Police papers and remained missing for such a long time coupled with the fact that the witnesses themselves denied that their 161 Cr.P.C, statements were recorded, creates suspicion about their authenticity. The possibility of tampering with all the earlier 161 Cr.P.C, statements cannot be ruled out. It was for this reason that the accused was released on bail by the High Court in this case.
In this connection it will not be out of place to mention that only after three days of the incident Anwar, brother of deceased Hanif, made an application to the Senior Supdt of Police for transfer of the case to Anti-Burglary Staff on the allegation that there were other accused in the case and the Investigating Officer was not arresting them. The case was transferred according to the wishes of the applicant. Neither the complainant nor the witnesses named the other accused. They also, did not complaint that the New Investigating Officer was also not taking steps against those other accused. Hence no reliance can be placed on the evidence of the so-called eye-witnesses Mohammad Iqbal and Abdul Rahim, in the case of Gul Muhammad vs. The $tate (1974 P.Cr.L.J. 400) where there was delay of one day in recording the statement of eye-witnesses, a Division Bench of this Court held their evidence to be unreliable and ruled it out of consideration. In the case of Qabil Shah vs. The State (P.L.D. i960 W.P. Kar. 397) the veracity of the eye-witnesses, whose 161 Cr.P.C, statements Were recorded by the Investigating Officer after 48 hours of the occurrence, was doubted by a Division Bench of this Court and was therefore, disbelieved. It is, therefore, clear that ocular evidence is highly doubtful.
9. Frantic efforts appear to have been made to base this case on dying declaration. In the F.I.R, it is stated that dying declaration was made in front of complainant, P.W. Zakaria and P.W Abdul Ghaffar s/o Ismail, implying thereby that it was made in front of those three witnesses jointly in the Hospital. However, on realising subsequently that the Medico-Legal Officer had certified that the deceased was not in a position to give dying declaration and was lying unconscious, the bullet having pierced is lungs, the prosecution appears to have changed its stand and given out that one dying declaration was made by the deceased at the scene of offence in presence of eye- witnesses Mohammad Iqbal, Abdul Rahim, Zakaria and Abdul Ghaffar, while another dying declaration was made in presence of complainant and these four witnesses at the Hospital. P.W.
Iqbal had stated before Police that Hanif had become unconscious, while P.W. Zakaria had stated that Hanif came raising cries and bleeding and due to profuse bleeding he we profuse brought on record. It does not appear to be believable that any dy. Iig declaration was made. Admittedly there is no dying declaration in writing. When SIP. Muzaffar Hussain tried to record the same, Dr .Hamid Ali certified that the deceased was not in a fit state of condition to give any statement and was lying unconscious. SIP. Muzaffar Hussain has made it clear that when he reached the injured in the Hospital, he did not find the complainant or any other witness present there. So much so that he proceeded to return to the Police Station without recording any F.I.R, or statement. According to Dr. Hamid Ali, Medico- Legal Officer, who gave the telephonic 'first information' to the. Police Station, only Zakaria was accompanying the deceased. P.W. Zakaria has no where stated that the deceased gave a dying declaration to him or to any-body else. It was the duty of the prosecution to have brought the medical evidence to the effect that when the deceased is alleged to have given dying declaration, he was in a fit state of body and mind for that purpose. No such evidence has been brought on record. On the contrary the defence counsel has questioned the Medical Officer on this point, who has stated that when the patient was brought to the Hospital, his B.P. And pulse rate was not recordable, his heart was working, but flow of blood was allow, the patient was drowsy and dis-orientated and he would have been feeling difficulty in speaking. In his examination-in-chief he has stated that fire arm injuries had damaged his lungs and liver. Under these circumstances it cannot be believed that the deceased could have given any dying declaration to those witnesses. It appears that P.Ws Zakaria and Abdul Ghaffar s/o Ismail are anxious to oblige the prosecution to the extent that although they were cited a supporting witnesses, but they have gone to the extent of claiming to have witnessed the act of firing by the accused at the deceased. Apart from that the dying declaration loses its value when the relatives or the persons interested in the prosecution are present near the deceased to prompt even if it is recorded by Police Officer or Magistrate, in this case the dying declaration is alleged to have been made to the complainant and P.Ws., who are themselves interested against the accused and therefore, no reliance can be placed on it. In the case of Sher Bahadur vs. The State (1972 S.C.M.R.
651) it was held that dying declaration requires corroboration and where it was recorded in presence of other people, possibility of prompting by them cannot be ruled out. In the' case of Mohammad Sharif vs, The State (1986 P.Cr.L.J. 637) it was held that dying declaration must be such as to inspire confidence and must be corroborated. Hence I am satisfied that neither the deceased was in a position to make a dying declaration, nor he made any declaration to the complainant and P.Ws.
10. It is alleged that accused Ismail @ Mota on being interrogated, offered to make discovery of the crime weapon and accordingly in presence of Mashirs SIP. Muzaffar Hussain and Head Constable Mohammad Iqbal, led the Police to the bath-room of his house and from an empty tin of Dalda took out a 30-Bore pistol and a live bullet. It is strange that when the offer to make discovery was made before him then nothing could have prevented the investigating Officer from taking private Mashirs. The fact that Police Officers were made Mahsirs, creates strong suspicion about the authenticity of the recovery. The suspicion becomes still grave when we look at the Mashirnama of the scene of offence which is Ex.-10. In that Mashirnama there is interpolation with a different ink and different hand-writing showing that the empty shell of 30-Bore was found at the scene of offence and that it was secured by the Police. The interpolation is not only visible to the naked eye, but also does not fit in with sequence of the text. The learned S.P.P. Tried explain that the Investigating Officer might have forgotten to mention the same and have subsequently mentioned, but the explanation is not convincing, as when cross-examined on this point, the Investigating Officer altogether denied that it was an interpolation or was written subsequently in a different ink. Such conduct on the part of the I.O. Not only makes the recovery of the empty shell and the crime weapon doubtful, but also renders the opinion of the Ballistice Expert useless. Then there is delay of more than four months in sending the crime weapon and the empty shell to the Balistic Expert. In the cases of Ghazi vs. The State (1982 S.C.M.R. 49) and Irfan Azam vs. The State (P.L.D. 1986 F.S.C. 149) it was held that delay in sending the crime weapon and articles to an Expert renders his opinion doubtful.
11. It is not necessary for the prosecution to show motive, but once motive is alleged, it has to be proved. In this case motive was not only remote, but obscured. The complainant has stated in the F.I.R, that on enquiry he came to know that the deceased had prohibited -the accused from smoking Heroin. The time of so prohibiting and the details of smoking are not given. The eye- witnesses have not stated that when they reached the scene of offence they heard or saw the deceased prohibiting the accused from smoking Heroin. Hence the obscurity ad weakness o! The motive also goes against the prosecution case. Reliance was placed in Nazir Mohammad vs. The State (P.L.D. 1974 Kar. 274) and Mohammad Sadiq vs. Mohammad Sarwar (1979 SGMR 214). Accused Ismail @ Mota has examined himself as a witness on oath. He has stated that he is Memon by caste and was doing business of cloth broker in Motandas Market. His house was in Kaghz Bazar where he was living with his disabled father and younger sister. Deceased Hanif and his brother used to live in a house in front of Siddiq Halawi shop in Bimbay Bazar. They have a shop in Motandas Market where they sell VCRs, radios and tape-recorders. Complainant Abdul Ghaffar had enticed away a girl in 1984 took her as his wife. The relatives of that girl were aggrieved by this.
They fought with the complainant and his brother. They attacked complainant's brother deceased Hanif and caused him injuries with Chhurri as well as pistol with an intent to kill him. Complainant party lodged such F.I.R, against them. They were challaned. The complainant party including the deceased gave evidence against them in the Court. The accused has produced certified copies of the F.I.R, and depositions of the complainant party. He has alleged that till his death the complainant party had not patched up with the deceased. Hence the deceased was killed by them. The complainant party thereafter patched up with the relatives of that girl and in order to save them, falsely implicated the accused in this case. No doubt the possibility of relatives of that girl having caused the death a Hance cannot be ruled out, but it seems improbable that the complainant party in order to save the real culprits falsely implicated accused Ismail @ Mota, specially v/hen there was no enmity between the accused and the complainant. However, the weakness of the defence set up by the accused does not lead adverse inference against him. The prosecution cas has to stand on its own feet.
12. I am, therefore, satisfied that the prosecution evidence is highly doubtful. It is tainted with forgeries, contradictions, improvements, omissions and substitution of evidence. There is clear indication to the effect that efforts were made to falsely implicate the accused. I, therefore, give benefit of reasonable doubt to the accused and acquit him of the above charge.