SIDDIK vs THE STATE

DORAB PATEL, J.-The appellant has been convicted by an Additional Sessions Judge, Nawabshah, under section 302, P. P. C. For the murder of one Ghulam Kader Dahri and sentenced to death. The case has come up before us for confirmation of the sentence of death passed by the learned Additional Sessions Judge and as the appellant has also filed an appeal against his conviction and sentence I shall dispose of the appeal and the reference by this judgment.

2. Ghulam Kader Dahri was murdered on 26th August 1968, whilst the appellant's son had been murdered some time before this date, and the appellant had filed a direct complaint against Ghulam Kader Dahri and six others for the murder of his son. In the events that happened, the complaint filed by the appellant was transferred to the Court of the Joint Civil Judge and 1st Class Magistrate, Nawabshah, but Ghulam Kader Dahri deceased had moved an application in the High Court for the quashment of the proceedings against him. This application was allowed by this Court on 23rd August 1968, and the case instituted by the appellant was fixed in the Court of the Joint Civil Judge and F. C. M., Nawabshah on 26th August 1968. Ghulam Kader Dahri deceased and others had come to the F. C. M.'s Court on 26th August 1968, and according to the prosecution the appellant was also present in Court when his case was called. He bad with him a gun wrapped in a sheet which he had naturally not brought into the Court room. The case was adjourned at the instance of Ghulam Kader Dahri deceased because of the order obtained by him from the High Court, and according to the prosecu--petition, after the adjournment of the case, Ghulam Kader went out of the Court room with P, Ws. Jan Muhammad and Jiwat Mal, The appellant followed him, and, presumably after picking up his gun, he fired at Ghulam Kader, who was hit and fell down. As the incident occurred in the compound of the Court, it was witnessed by many persons including P.

W. Samo, the Chauffeur of the deceased, and P. W. Ajaib Hussain Shah Police Constable, who had brought the under-trial prisoners to Court on that day. Accordingly, as the appellant ran away after firing at the deceased, P. Ws. Samo and Ajaib Hussain Shah Police Constable chased him. P. W, Muhammad Pinjal, Police Inspector, who was also in the Court building and had come out on hearing the gun-report, joined in the chase of the appellant. They overtook the appellant near the office of one Mr. Ahmad Nawaz, Advocate. The appellant threatened his pursuers with his gun, but P. W. Muhammad Pinjal, Police Inspector, told the Constable Ajaib Hussain Shah to fire his gun in the air. The appellant thereupon gave up resistance and allowed himself to be arrested with his gun. P.

W. Muhammad Pinjal, Police Inspector, secured the gun by a Mashirnama (Exh. 9) which was witnessed by P.W. Pir Muhammad Waris. The gun was containing one live and one empty cartridge.

After securing the gun, P. W. Muhammad Pinjal produced the appellant before P. W. Zarar Hussain who was Incharge of the New Town Police Station, Nawabshah, whilst P. W. Samo lodged the F. I. R.

(Exh. 11). The police thereafter began investigations, but I have to observe here with great regret that there was considerable delay in recording the statements of witnesses. In due course, the gun and the empty secured were sent to the Ballistic Expert for his report, and according to his report (Exh. 41), the empty secured was fired from the gun of the appellant. After completing investigations the appellant was challaned as stated.

3. In support of its case, the prosecution examined, P. Ws. Jan Muhammad, Ghulam Muhammad, Jiwat Mal and Ajaib Hussain Shah as eye--witnesses of the occurrence. It also examined P. W.

Pinjal, Police Inspector and P. W. Pir Muhammad Waris the mashir as well as the Investigation Officers. Finally, it is sufficient to state that it examined P. W. Dr. Sharif, who had carried out the post- mortem of the deceased, and his evidence proves beyond doubt that the deceased was killed by a gunshot wound.

4. The appellant's plea was one of denial and he alleged that he had been falsely implicated on account of enmity. Further, be produced con--siderable documentary evidence in support of this plea of enmity. He also denied his presence at the wardat on the day of the occurrence and in support of this plea of alibi he examined D. W. Ayub Hassan, the F. C. M., Nawabshah, before whom the deceased had appeared on the fatal day. He also denied his arrest and the recovery from him of his gun by P. W. Pinjal, He said however that he had been arrested by P. W. Zarrar Khan, A. S. I. In the `bazar' of Nawabshah and taken to the police station. Finally, he admitted having used his gun, but he said that he had used it to fire at a dog who was trying to attack him.

5. The learned Additional Sessions Judge was impressed by the evidence of the eye-witnesses, including their evidence about the appellant's motive for the crime. He however noted that there were dis--crepancies in the evidence of the eye-witnesses, but he thought these discrepancies were not material. But as I have said, there was considerable delay by the police in recording the statements of witnesses, and according to the defence, this was on account of the influence of the party of the complain--ant. The learned Additional Sessions Judge did not accept the plea of the accused and expressed the opinion that the delay in recording the statement of witnesses was due to negligence on the part of the investigation agency. He also held that the ocular evidence was corroborated by the evidence of the recovery of a gun from the appellant and the evidence of the Ballistic Expert. He therefore convicted the appellant as stated.

6. I have observed earlier that the learned Additional Sessions Judge was impressed by the prosecution evidence of the motive of the crime, and I may recall here that proceedings against the deceased bad been instituted on a direct complaint filed by the appellant, but the proceedings against him had been quashed by this Court on 23rd August 1968, therefore when the case was called before the F. C. M., Nawabshah on 26th August 1968, the deceased had drawn the attention of the Court to the order of the High Court and he had been given time to produce this Court's order of quashment. According to P. W. Samo and others, the appellant was enraged by the success of the deceased, hence the murder. On the assumption, which I shall presently examine, that the appellant knew of the High Court's order, he no doubt had a motive for the crime, but it is obvious that the deceased would have enmity with him for the false charge brought against him, and not less so because, unlike the appellant, the deceased was an important local figure. The appellant has also alleged enmity on account of political rivalries and the further ground that he was a prosecution witness in a case registered against the deceased under the Goonda Act, and although the Police Officers professed ignorance of these proceedings against the deceased, the plea of the appellant is fully. Supported by the judgment of the Sessions Court, Nawabshah dated 29-11-1969 (Exh. 61) in Criminal Appeal No. 111/66. I am therefore satisfied that the appellant's plea of enmity is correct, and it is unfortunate that the Sessions Court ignored it, because P. W. Samo was the faithful retainer of the deceased, whilst P. W. Jiwat Mal was his partner in a factory, and P. Ws.

Jan Muhammad and Ghulam Muhammad belonged to the same political party as the deceased.

7. Additionally, it is relevant to remember here that the appellant had stressed this question of political rivalry in his section 342, Cr. P. C. Statement and this has been proved to hilt by the admissions of P. W. Jan Muhammad in his cross-examination. This witness admitted in cross- examination that he "had thick connections with the deceased" and said "I, my uncle Imamali, the deceased and Ghulam Mustafa Jatoi belong to one political group. In 1962, Provincial Assembly Election Gullan Jam had opposed my uncle Haji Imam A.I, Gullan Jam is the headman and party man of the accused. Gullan lost. The accused and his relations had supported Gullan Jam and were voters. In 1965 Elections Shabbir Ahmed Shah opposed my uncle Imamali in Provincial Assembly Elections and accused and his relations supported Shabbir Hussain Shah. In 1965 National Assembly Elections Ghulam Mustafa had opposed Zafarali Shah, who lost. We all, including my uncle and the deceased supported Ghulam Mustafa and Zafarali Shah was supported by the accused and his relations. Uptill today we are political rivals," P. W. Ghulam Muhammad also belonged to the party of the deceased, and I may point out here that when P. W.

Samo was cross-examined about these political rivalries he admitted that the deceased and the appellant belonged to different groups, but he attempted to deny the alleged rivalry. Thus, in reference to the appellant's support of the opposite-party, he said "I do not know if accused and his relations supported Shabbir Ahmed Shah" and he denied having made any admission to the contrary in the lower Court. However, he was confronted with his statement in the lower Court (Exh.

14), in which he had admitted that the appellant and his relations had supported the opponent of his master's group. The attempt of the witness to deny the rivalry is significant, and in the circumstances discussed the evidence of P. Ws. Samo, Jan Muhammad, Ghulam Muhammad and Jiwat Mal cannot be said to be disinterested.

8. As four of the five eye-witnesses examined by the prosecution were interested witnesses, the question whether the F. I. R. (Exh. 11) was lodged promptly becomes important. The occurrence took place at 10 a.m. And according to the prosecution the report (Exh. 11) was recorded half an hour later by P. W. Zarrar Khan, A. S. I. As the police station was virtually at the wardat, Mr. Ghulam Nabi Memon submitted that even this half hour meant there was delay in lodging the F.I.R. And he also drew our attention to an in--terpolation in the F.I.R. About the time at which it was recorded. There is an interpolation, and this is unfortunate because the time at which the appellant was arrested is of some importance to his defence. But the real point is whether the prosecution has explained its failure to lodge the F. I. R. Immediately. According to the Sessions Court, this could not be done because of the shock and consternation caused by the occurrence, and this explanation would apply to the son of the deceased who by a strange coincidence arrived only after the murder. But what"' about P. Ws. Jiwat Mal, Jan Muhammad and Ghulam Muhammad and it is not irrelevant to point out that P. W. Ghulam Muhammad attempted to disclaim intimacy with the deceased. There is however a more disturbing aspect of the case. According to P. W. Dr. Sharif's evidence, the deceased was killed immediately, and this means that a man had been shot dead just outside a police station. The deceased was a very important local personality, according to the prosecution, and the assailant had been identified by at least 4 eye-witnesses, yet the F. I. R. Was not lodged until after the arrest of the assailant. Assuming that the eye--witnesses were too bewildered by the tragedy to do anything, the murder took place virtually at the door of a police station, and it was the duty of the Police Officers to record a complaint immediately. That no action was taken, despite the claim of the prosecution that the identity of the assailant was known, is a circumstance which casts doubt on the investigation agency, and I have to state here with regret that this is one of the several circumstances which cast doubt on the investigation. Turning now to the eye-witnesses their explanation for the delay in lodging the F. I. R. Was that they were over--whelmed by the sudden tragedy. The explanation would have been convinc--ing if the F. I. R. Had been lodged by the son of the deceased or by his brother---in-law Abdul Sattar, both of whom had somehow come to the wardat immediately after the occurrence. But why should P. W. Ghulam Muhammad who attempted to disclaim close intimacy with the deceased, have been so overwhelmed.

Similarly, the deceased had been accompanied by a battalion of Advocates, and surely one of them could have rushed to lodge the F. I. R. Again P. W. Jan Muhammad admitted in cross- examination that the S. I. P. And the D. S. P. Had arrived at the wardat but had not "made enquiries from any of the witnesses at the wardat". Is this credible? No doubt, the witness contradicted himself, and said that he could not remember whether the police had made enquiries from the other witnesses. As I cannot believe that the police would not have come to the wardat immediately, the mystery thickens. Mr. Nasiruddin's only submission on this aspect of the case was that there was no delay because the F. I. R. Was lodged by P. W. Samo, who had chased the appellant, and after his capture P. W. Samo had immediately come and lodged the F. I. R. The explanation is not fit to be believed, because it assumes that no one except P. W. Samo was competent to lodge the F. I. R. An assumption which is patently absurd. Finally, I have observed that, P. W, Samo was accompanied by several Advocates when he lodged the F. I. R. At the police station.

Although the witness emphatically denied in his evidence that he had been accompanied by Advocates to the police station, P. W. Zarar Khan, who recorded his F. I. R. Said "It is correct that when Samo came to lodge complaint at the police station he was accompanied by Mr. Anwer Ahmed, Advocate, Mr. Abdul Hai, Advocate and Imamali Unar, Ex-M. P. A., and many other people, Mr. Abdul Latif, Advocate, Mr. Abdul Hamid, Advocate, Dr. Muhammad Umar Dahri also accompanied the complainant". Apart from the fact that P. W. Zarrar Khan's evidence exposes how false a witness P. W. Samo was, I am disturbed by another aspect of the case. As the party of the complainant knew so many Advocates, how can the failure to lodge the F. I. R. Immediately be explained away? I am aware that delay was not great, and in this connection Mr. Nasiruddin relied on the fact that according to the F. I. R., the report was lodged within half an hour of the occurrence.

But in view of the interpolation in the F. I. R. Can the statement in the F. I. R. Be accepted? And here, as I shall presently show, according to P. W. Pinjal, the appellant was arrested at 10-30 a.m. Or 10-50 a.m. Whilst, according to P. W. Pir Muhammad Waris, the appellant was arrested at about 11 a.m. As, according to the prosecution, the F. I. R. Had been lodged only after the appellant had been produced at the police station, Mr. Ghulam Nabi Memon submitted that it must have been lodged around 11 a.m. So that there was at least an hour's delay. Whether the delay be of an hour or of half an hour, the fact remains that there was delay, and this is unfortunate in view of the bitter enmity between the party of the appellant and of the deceased.

9. I now turn to the ocular evidence and I may at the outset point out that the police recorded the statements of P. Ws. Jiwat Mal and Jan Muhammad after a delay of two days on 20th August 1968, whilst the state--ment of P. W. Ghulam Muhammad was recorded on 31st August 1968. In this background, I would first consider the appellant's plea of alibi. The appellant claims to have been ignorant of the High Court's order quashing against the deceased the complaint filed by him, Mr. Nasiruddin submitted that the appellant's plea was not fit to be believed, but the records of this Court were not examined to show whether the appellant or his Advocate were aware or should have been aware of the order pronounced by this Court, and as the burden of proving its case falls on the prosecution, this was unfortunate. Further the appellant bad examined the F. C. M., Nawabshah to prove his plea that he was not at the wardat at the time of the incident because he was not in the Court room when the case against the deceased was called. Mr. Ghulam Nabi Memon naturally relied on the presumption in favour of official records and submitted that -the trial Court had erred in preferring the evidence of the prosecution witnesses to that of the F. C. M., Nawabshah and in this connection he stressed the discrepancies in the prosecution evidence and the improbable nature of its claim.

10. According to Mr. Ghulam Nabi Memon, even if the appellant had wanted to murder the deceased, he would not have been so foolish as to commit murder in the premises of the Court because of the overwhelming possibility of being captured. That the appellant could have chosen a better venue for the attack is obvious, but as murder is not committed on a rational calculation of possibilities, I am not impressed by Mr. Ghulam Nabi Memon's argument. But the question of the discrepancies in the ocular evidence requires examination, the moreso as the Sessions Court has brushed aside them as trivial. Here I must emphasise that the prosecution case is that the appellant was present in Court when the case against the deceased was called. But he is also alleged to have murdered the deceased with a gun, and as no one is permitted to enter a Court room with a gun, the prosecu--petition witnesses had to explain what happened to the appellant's gun when he came into the Court room. P. Ws. Jan Muhammad and Ghulam Muhammad have not said anything on this aspect of the case because they claim that they were never in the Court room. But accord--ing to P. W. Samo, when the appellant went into the Court room, he left his gun "lying wrapped in a chadar in the verandah". And he also said that the gun was "visible a little", but in the lower Court he had said it was not visible at all. On the other hand, according to P. W. Jiwat Mal, "the gun of the accused was not wrapped or covered in any cloth and was visible". I will not go into the question as to which of these conflicting versions is correct because both are absurd. As the prosecution case is that the appellant had come to kill the deceased, it is impossible to believe that he would have left his gun in the verandah, unguarded, when he knew that his mortal enemies were around. To get over this difficulty, P. W. Ajaib Hussain Shah P. C. Put up a different story. He said that when the appellant went into the Court room, he left his gun with a man with a moustache and asked that man to take care of it. He then said as that man was standing very near the Court "I had asked that man not to stand with the gun near the Court. He therefore moved a few paces from there. Accused Siddiq came out and met the man with moustaches". The story sounds extremely plausible, but P. W. Pir Bux who had recorded the section 161, Cr. P. C. Statement of the witness, said: "he (P. W. Ajaib Hussain Shah) has not stated that the accused left the gun in the verandah and asked one person with moustaches to take care of the gun". As P. W. Ajaib Hussain Shah had not referred to the mysterious man with a moustache in his state--ment to the police, it is not possible to believe the story put up by him in his evidence in the Sessions Court, and that a police witness should try to improve upon his evidence in order to bolster up the prosecution case is very unfortunate. But reverting to the facts of the case, as according to the prosecution, the appellant had a gun with him, he could not have been allowed to enter the Court room, therefore, I see no reason whatever to disbelieve the evidence of D. W. Ayub Hassan, the F. C. M., Nawabshah, and in my opinion the contrary view taken by the trial Court is erroneous. However, this is not sufficient to prove the appellant's plea of alibi, because, if he had intended to murder the deceased, it would have been very foolish on his part to have entered the Court room so as to create evidence for himself. Whilst the prosecution version about his entering the Court room is false, this does not necessarily mean that the appellant could not have been lurking outside with his gun, therefore, I will now turn to the description of the occurrence by the witnesses.

11. P. W. Samo the complainant said that the appellant had fired at the deceased from a distance of 10 or 15 paces and that as the deceased was falling down he was caught by P. Ws. Ghulam Muhammad and Jan Muhammad. Now in his F. I. R. He had stated that he was with the deceased when the appellant fired, therefore, as the shot had been fired from 10 or 15 paces he should have received injuries also. But he was unscathed, and to get over this difficulty he said in evidence that he was not actually with the deceased at the time of the occurrence, but that he was ahead of the deceased. When questioned about the discrepancy between his statement in Court and the Statement in the F. I. R., he voluntarily explained "that he has so stated in the F. I. R. Because the deceased was following him by a little distance". The explanation is not fit to be believed because P. W. Samo had four Advocates with him when he was recording the F. I. R. Again, if his evidence in Court that the deceased was with P. Ws. Ghulam Muhammad and Jan Muhammad be true, these witnesses should have received injuries, but as they were unscathed this necessarily casts doubt on P. W. Samo's evidence. The trial Court has brushed aside this material discrepancy on the basis of the medical evidence because P. W. Dr. Sharif said that the assailant had fired at the deceased from a distance of 6 or 8 feet and as a shot fired at such close range might not cause injuries to persons accompanying the deceased, the Sessions Court has used this explanation to get round P.

W. Samo's evidence. No doubt the doctor's evidence is to be preferred, but the question was not of reconstructing how the crime had been com--mitted, but of the veracity of the eye-witnesses examined by the prosecution, and the medical evidence falsifies P. W. Samo's evidence. Secondly, it discredits the evidence of P. W. Jan Muhammad, because that witness also said that the appellant had fired from about 8 or 10 paces, and I must stress here that in the circumstances of the case the discrepancies about the distance from which the assailant fired cannot be brushed aside as trivial.

Again, P. W. Samo said that he had chased the appellant and after his capture by the police he had returned to the wardat, and then he said "Ghulam Kadir was still alive but died soon afterwards".

But as according to P. W. Dr. Sharif the death of the deceased was instantaneous, I am not able to be--lieve the statement of P. W. Samo. I would further observe here that I am very poorly impressed by the evidence of this witness.

12. Mr. Ghulam Nabi Memon then submitted that the evidence of the other eye-witnesses was also full of material discrepancies, and I would first consider the argument with reference to the evidence of P. Ws. Jan Muhammad, Ghulam Muhammad and Jiwat Mal. Taking for example, the evidence of P.W. Jiwat Mal, Mr. Ghulam A.I Memon rightly pointed out that this witness was a businessm an and was expected to give evidence clearly. But whilst in the Sessions Court he claimed that he had seen the appellant fire at the deceased, he had stated in the lower Court that he had not seen the appellant firing at the deceased but that he had only seen him running away with his gun. Another aspect of the evidence of this witness which is very relevant, for the reasons which I shall give, is that, according to him, P. W. Pinjal, Police Inspector, had come to the wardat and made enquiries from him about the occurrence, but P. W. Pinjal denied having made any enquiries. Then, as to P. W. Ghulam Muhammad, this witness stated that as the deceased was hit he uttered the word "Siddiq". The attempt of the witness to attribute a sort of dying declaration to the deceased is inconsistent with the evidence of all the other eye-witnesses and even this witness had not said so to the police: Again, whilst he was the `Kamdar' of the uncle of Ghulam Mustafa Jatoi, he said that he did not know whom he had supported in the previous elections. Obviously, the witness tried un--successfully to pass off as an independent witness. Finally, as to P. W. Jan Muhammad, I have already pointed out that his claim that the appellant had fired at the deceased from a distance of 8 or 10 paces is not consistent with the medical evidence. Another point of importance to which Mr. Ghulam Nabi Memon referred us were the discrepant statements of these four eye-witnesses as to what happened when the deceased was hit. Thus, according to P. Ws.

Samo and Jan Muhammad, the deceased was hit and as he was falling down P. Ws. Jan Muhammad, Ghulam Muhammad and Jiwat Mal had caught hold of him with the result that the clothes of these witnesses got blood-stained. But according to P. W. Ghulam Muhammad only he and P. W. Jiwat Mal had helped the deceased, whilst according to P. W. Jiwat Mal, only he and P. W.

Jan Muhammad had helped the deceased as he was falling down. Whatever be the true position, the deceased must have bled heavily and therefore the clothes of the persons helping him would get blood-stained. This was the claim advanced by the three eye-witnesses, and in this connection P. W. Jan Muhammad said "We were not asked by the police to preserve those clothes". The other witnesses made the same claim, but it is to be remembered that three police officers had come to the wardat, namely P. Ws. Zarrar Khan, Pir Bux, Dy. S. P. And Muhammad Pinjal, Police Inspector, but none of these officers have said that they had seen any person with blood-stained clothes. It is therefore impossible to believe the claim of these witnesses that their clothes were blood-stained, and this cannot but cast doubt on their veracity. It is also significant that P. W. Ajaib Hussain Shah did not say that these witnesses had caught or helped the deceased as he was falling, and he even said that he could not say whether P. Ws. Jan Muhammad and Ghulam Muhammad "were present at the time of the incident at the scene of the offence". Finally, as the incident occurred during Court hours, it was witnessed by many persons, and many people had come to the wardat after hearing the gun report. This has been admitted by the witnesses, and for example P. W. Jan Muhammad said that about 200 persons, including the Sessions Judge, the Joint Civil Judge and the Police Officers, had come to the wardat after the gun report. Yet, according to P. Ws. Jan Muhammad, Ghulam Muhammad and Jiwat Mal, none of them were asked who had murdered the deceased, and they also did not inform any one that the deceased had been murdered by the appellant. I find it absolutely impossible to believe this, and therefore Mr. Ghulam Nabi Memon submitted that these witnesses could not have been present at the occurrence. In this connection he also submitted that P. Ws. Jan Muhammad and Ghulam Muhammad had not given a satisfactory explanation of their presence in Court at the time of the occurrence. I am not able to accept this submission, but in my opinion the witnesses have deliberately made a false statement in order to gloss over the failure of the prosecution to examine any witnesses other than the party men of the deceased.

13. I am also constrained to observe here that I am not impressed by the manner in which the investigation has been conducted. In the first place, as I have pointed out, I find it impossible to believe that the Police Officers who had come to the wardat after the occurrence had not made enquiries from P. Ws. Jan Muhammad, Ghulam Muhammad and Jiwat Mal. The trial Court has explained away this aspect of the case by putting the blame on P. W. Zarrar Khan; that P. W. Zarrar Khan, a mere Assistant Sub-Inspector of Police, should be so negligent when senior officers like P.

W. Pir Bux and Pinjal were around is difficult to believe. But even if the fault was only of this officer, as held by the trial Court, investigations had been taken over in the evening by P. W. Pir Bux, Dy. S. P.

Now because this witness was the Dy. S. P of Larkana, Mr. Ghulam Nabi Memon tried to make much of the fact that the case was not transferred to the local Dy. S. P. I do not think it is any concern of the Court as to who was entrusted with the investigation, but, according to the trial Court, P. W. Pir Bux conducted the investigations energetically. Is this consistent with the evidence on the record?

Thus, in order to justify the delay in recording the statements of the prosecution witnesses, P. W. Pir Bux, Dy. S. P. Said "I made efforts to examine such witnesses on the next day but no body came forward to give evidence." The trial Court accepted this explanation because it took the view that the witnesses had rushed off to attend the funeral and the `Soyem' of the deceas--ed. Now this explanation would have been satisfactory with regard to Illahi Bux, the son of the deceased, but the said Illahi Bux was not examined in the Sessions Court though his statement was recorded by the Police. Secondly, although P. Ws. Jan Muhammad and Jiwat Mal had gone to the village of the deceased to pay their last respects, they said that they had come to Nawabshah as soon as the Police sent for them. Then, as to P. W. Ghulam Muhammad, this witness disclaimed close connections with the deceased and said that after attending the funeral he had returned to his village, therefore he could have been examined on the 27th August, yet he was examined on the 31st August, and it is also significant that his statement was not recorded in the lower Court. I will presently consider other aspects of the investigation which have disturbed me, but I will now turn to the evidence of P. W. Ajaib Hussain Shah.

14. P. W. Ajaib Hussain Shah was one of the police constables escorting the under trial prisoners to the Court of the F.C.M., and therefore I agree with the view of the trial Court that he was a natural witness. The trial Court has been impressed by his evidence because it took the view that the discrepancies in his evidence were due to his illiteracy. If this view is correct, the evidence of this witness would be of great help to the prosecution, because admittedly he was not an interested witness in the sense of being a party-man of the deceased. Further, as I have pointed out, the witness has not supported the story of the other prosecution witnesses that they had helped the deceased as he was collapsing. Similarly, he said in evidence that the appellant had fired at the deceased from a distance of 4 or 5 paces and as this is consistent with the medical evidence, Mr. Nasiruddin invited us to hold that the witness was a witness of truth. But the witness only made this statement in the Sessions Court; he had not said in his statement to the police that the appellant had fired from a distance of 4 or 5 paces. And it is difficult to believe that the police could not record properly a statement of a police constable. Turning now to the witness's description of the occurrence, he said that he saw the appellant fire his gun "and Ghulam Kadir putting his hand over left side of his chest as he fell down. Accused was standing under the Nim tree . . . . . At the time of fire the accused abused the deceased in Sindhi saying that it is better that he has died . . . . I was at a distance of 30 or 33 paces from the deceased". The statement that the assailant had fired from near the Nim tree is correct, but, according to P. W. Pir Bux, the witness had not said in his section 161, Cr. P. C. That "he saw accused firing his gun at the deceased and that the deceased put his hands on the chest and fell down, he has not stated that he saw the accused under Nim tree. He has not stated before me that the accused abused the deceased in Sindhi and that it was better that he had died . . . . ." Further, when the witness was cross-examined about his statement to the police, he said in the Sessions Court that it had been recorded on the evening of the occurrence and that is the claim of the Investigation Officer. In view of the delay in recording the statement of the other eye--witnesses, the question is not in1portant, but in the lower Court the witness had emphatically said that he was examined on the day after the occurrence and also that he had been examined "on the third day of the incident". I cannot agree with the view of the learned Additional Sessions Judge that these and other discrepancies, which I shall presently consider, were trivial or such as could be explained away on account of the fact that the witness was illiterate. The witness tried to improve on the prosecution case in the Sessions Court, and I am deeply disturbed by such conduct on the part of a police witness. Mr. Ghulam Nabi Memon therefore submitted that this manifested the bias of the prosecution against the appellant because none of the investigation officers had cared to examine any persons other than the relations of the deceased and his partymen. It is true that the occurrence had been witnessed by many persons and similarly many persons, including Judges and Advocates, had come to the wardat immediately after the occurrence, therefore it is strange that none of these other persons were examined either as eye-witnesses or as corroboratory witnesses, and in all the circumstances discussed, the ocular evidence cannot be accepted without strong corroboration by independent and reliable evidence.

15. Mr. Nasiruddin was conscious of the infirmities in the ocular evidence and he invited us to accept at least that of P.W. Ajaib Hussain Shah. But the evidence of this witness also is so full of discrepancies, some of which I have yet to consider, that it is not fit to be accepted without strong corroboration. Mr. Nasiruddin then submitted that the question of the corroboration of ocular evidence was not important, because even if the ocular evidence was unreliable, the prosecution had produced circumstantial evidence which proved the appellant's guilt. That circumstantial evidence, according to learned counsel, was the capture of the appellant by P. Ws. Pinjal and Ajaib Hussain Shah with a gun which was smelling. I may recall here that the appellant admitted that he had been arrested with his gun, but he pointed out that the gun was his licensed gun and that he had been taken by P. W. Zarrar Khan, A. S. I. P. To the police station. Therefore, the mere capture of the appellant by the Police Officers with his gun is of little evidentiary value, and the question is of the manner of his arrest.

16. Both P. Ws. Samo and Ajaib Hussain Shah, P. C. Have described how they had chased the appellant, and in this connection the police constable said that the appellant had run towards the office of one Mr. Awan, then to Moni Bazar, then to the railway gate and that they had finally caught him near the house of Mr. Anwar, but that P. W. Pinjal had also meanwhile joined in the chase. P. W.

Ajaib Hussain Shah also said that Head Constable Mehdi Khan was present when the accused was captured, and similarly P. W. Samo said that other persons had joined in the chase of the appellant.

Obviously, the chase must have taken some time, because, according to P. W. Pinjal, he had followed the appellant in the car of one Sain Dad and then got out of the car near the place where the appellant was captured. Then, according to all these witnesses, P. W. Pinjal directed P. W. Ajaib Hussain Shah to fire a shot in the air, and on this the appellant had allowed himself to be arrested with his gun, which was smelling and smoking, vide the Mashirnama (Exh. 9), and P. Ws.

Muhammad Waris and the said Saindad were the mashirs of this mashir--nama. Mr. Nasiruddin invited us to accept this evidence and to hold that it was sufficient to prove the appellant's guilt.

Reliance is thus placed on two circumstances. The first is that the appellant was caught very shortly after the occurrence, and the second is that the gun secured from him was smelling. I agree that these circumstances, if proved, would be fatal to the appellant's case, but the question is whether they have been proved.

17. I will first consider the question of the time of the appellant's arrest. According to P. W. Pinjal's evidence, as recorded in English, the appellant was arrested "at about 10-50 a.m. Or 10-30 a.m." If this version is correct, as I shall presently show, there is a material discrepancy between the evidence of P. W. Pinjal and Muhammad Waris, but not if the arrest took place earlier than 10-30 a.m. Therefore, our attention was drawn to the fact that according to the Sindhi version of the deposition of P. W. Pinjal, the appellant had been arrested at 10-15 or 10-30 a.m. And Mr. Nasiruddin invited us to prefer the Sindhi version, no doubt because it supported the case of the prosecution on a, point of crucial importance. Mr. Ghulam Nabi Memon naturally submitted that the Sindhi version was probably recorded by the Peshkar of the Court and was therefore not fit to be accepted. Even if we can ignore the frequent complaints in this respect, this is the second time within a couple of weeks that we have found a material discrepancy between the Sindhi and the English version of the evidence of the same witness in a confirmation case. I hope that Sessions Courts will be careful in future and that such mistakes, which shake confidence in the administration of justice, do not recur. But the question before us remains as to which version is to be preferred. Now, the fact that according to the English version P. W. Pinjal gave the time of the appellant's arrest to be "at about 10-50 or 10-30 a.m." may mean a clerical error in recording evidence or it may mean that the witness by referring to 10-30 a.m. Was trying to improve on the prosecution case. The ambiguity has therefore to be resolved by reference to the evidence of the mashirs about the time of the appellant's arrest, and the only mashir examined, P. W. Pir Muhammad Waris, said that the appellant had been arrested at about 11 a.m. Additionally, the difficulty has arisen because of P. W. Pinjal's failure to record the time of the appellant's arrest in the mashirnama. The witness was cross-examined on his failure to record the time of the appellant's arrest in the mashir--nama and he admitted that he should have recorded it. In these cir-- cumstances, to accept the Sindhi version of the witness's evidence would be to give the benefit of doubt to the prosecution and I see no reason for preferring that version of the evidence which supports the prosecution. Accordingly I hold that the appellant was arrested between 10-30 and 11 a. m. In the light of this finding, I will now examine the evidence about the condi--petition of the appellant's gun on which Mr. Nasiruddin placed so much stress.

18. According to P. W. Pinjal, the gun was only smelling, whilst according to P. W. Muhammad Waris "there was smell and smoke coming out of the gun when it was opened". P. W. Muhammad Waris's statement is consistent with the mashirnama, but its consequences are damaging to the prosecution case, because smoke can come out of a gun only for a very short time after a shot has been fired. Therefore, on the most liberal interpretation, the evidence of P. W. Muhammad Waris would mean that the appellant had fired his gun about 10 minutes before his arrest. But as he was arrested at least half an hour after the occurrence if not more the fact that the gun was smoking cast doubt on the prosecution case. Mr. Nasiruddin therefore invited us to prefer the evidence of P.

W. Pinjal to that of P. W. Muhammad Waris, as had been done by the trial Court, and in this connection the learned counsel pointed out that the Sessions Court had not been impressed by the evidence of P. W. Muhammad Waris. It is true that the Sessions Court was not impressed by this witness, but this is hardly a circumstance which improves the prosecution case, and on a point of such crucial importance, would it be safe to prefer the evidence of P. W. Pinjal?

19. I may recall here that P. Ws. Samo and Aiaib Hussain Shah. P. C. Were present at the time of the capture of the appellant, but neither of them said that the gun secured from him was smelling. I will assume that P. W. Santo had no knowledge of firearms and therefore his silence is immaterial. But it would be absurd to hold that P. W. Ajaib Hussain Shah was not familiar with firearms. Even the case of the prosecution is that P. W. Pinjal had called upon him to fire a shot in the air at the time of the appellant's arrest, therefore the fact that P. W. Ajaib Hussain Shah has not said that the gun of the appellant was smelling is a circumstance which casts doubt on the claim of the prosecution that the gun was smelling. This doubt might have been resolved if the prosecution had examined other witnesses, and I may point out here that even according to P. W. Pinjal, Head Constables Mehdi Khan and Muhammad Hayat and other spectators were present at the time of the appellant's arrest. But neither they, nor other mashir Saindad was examined, and in view of the confused state of evidence this was unfortunate.

20. Mr. Ghulam Nabi Memon's final submission on this crucial point was that P. W. Pinjal's evidence about the smelling of the gun was not even admissible because it was in answer to a leading question to which he had objected in the lower Court. In order to appreciate the submission, I may point out that the question put to the witness was "did you smell the gun"? Despite the objection of the learned counsel the Court allowed the question and the answer was "I did smell gun and it smelled by recent firing". I have to state with regret that there was absolutely no justification for questioning an experienced police officer in this manner, and as the question was intended to suggest the reply sought from the witness I agree with Mr. Ghulam Nabi Memon that the answer is inadmissible. However, even if I am wrong, the evidentiary value of the answer is necessarily affected by the improper manner in which the witness was allowed to be questioned.

21. Mr. Ghulam Nabi Memon's next submission was that the evidence of P. W. Pinjal was unfit to be believed because of the discrepancies between it and the evidence of the other prosecution witnesses. Thus, for instance, P. W. Pinjal claims to have walked back to the police station after arresting the appellant. As there were two or three armed constables available to escort the appellant and as the car of the mashir Saindad was available, learned counsel stated that P. W.

Pinjal had falsely asserted that he had walked back to the police station in order to explain away the delay in lodging the F. I. R. The witness was cross-examined on this point, and he could not explain why he had preferred to walk back on a hot morning. But according to P. W. Ghulam Muhammad "Muhammad Pinjal was with Saindad in the car", and even according to P. W. Ajaib Hussain Shah's lower Court statement P. W. Pinjal had "arrived in a car probably of one Ghulam Muhammad". I however agree with Mr. Nasiruddin that this discrepancy is too trivial to shake the credit of the witness.

22. Mr. Ghulam Nabi Memon then referred to the discrepancies in the prosecution evidence about the conduct of the investigation, and in view my earlier observations about this aspect of the case, I consider it necessary to refer in some detail to learned counsel's criticism. Thus, for example, P. W.

Pinjal denied having questioned any eye-witness at the wardat after he had returned with the appellant and produced him at the police station. Now, I have already observed that it is impossible to believe the prosecu--petition claims that police officers had not made any enquiries and Mr. Ghulam Nabi Memon referred us to the statement of P. W. Jiwat Mal that he had been questioned by P. W. Pinjal. I agree with Mr. Ghulam Nabi Memon that in the circumstances discussed the statement of P: W. Jiwat Mal is to be preferred to that of P. W. Pinjal, Again, according to P. W. Pinjal, his section 161, Cr. P. C. Statement was recorded by P. W. Pir Bux, D. S. P. On the evening of the occurrence. But P. W. Zarrar Khan, A. S. I. P. Admitted that he had recorded P. W. Pinjal's statement, therefore once again there is a discrepancy between the evidence of one police officer and another. It is true that P. W. Zarrar Khan, A. S. I. P. Admitted having recorded P. W. Pinjal's statement only in cross-examination and that after he had been confronted with his statement in the lower Court. But this hardly improves the case of the prosecution, and on the contrary it shows how P. W. Zarrar Khan was trying to bolster up the prosecution, case. Additionally, the appellant was entitled to a copy of the statement recorded by P. W. Zarrar Khan, but according to the A. P. P. No such statement was available. The trial Court has accepted the explanation of the A. P. P. And Mr. Nasiruddin sought to justify this on the ground that the trial Court had not been impressed by P. W.

Zarrar Khan's conduct of the investigation. But because P. W. Zarrar Khan was slow in the conduct of the investigation this does not make him a false witness? Again, even if P. W. Zarrar Khan's evidence can be brushed aside so lightly, as has been done by the trial Court, P. W. Ajaib Hussain Shah, was, so to say, the star witness produced by the prosecution, and even in his arguments before us Mr. Nasiruddin invited us to accept the prosecution version of the occurrence on the basis of this witness's evidence. But even P. W. Ajaib Hussain Shah was compelled to admit in his cross-examination that P. W. Zarrar Khan had recorded his statement on his return to the wardat after the arrest of the appellant. This statement has also not been produced by the prosecution and Mr. Ghulam Nabi Memon invited us to draw a strong adverse inference against the prosecution for not producing the statements of these two witnesses. Mr. Nasiruddin's only reply was that P. W. Ajaib Hussain Shah had ex--plained to the Court that his statement which had been recorded had reference to the empty secured from the appellant at the time of his arrest. I do not see how this explanation can absolve the prosecution from its obligation for producing that statement, and, on the contrary, as Mr. Nasiruddin placed so much reliance on the manner of the appellant's arrest, it was all the more necessary for the prosecution to have placed this statement of P. W. Ajaib Hussain Shah before the Court. I therefore agree with Mr. Ghulam Nabi Memon that an adverse inference has to be drawn against the prosecution for suppressing these two statements.

23. Finally, there is some discrepancy between the evidence of P. Ws. Pinjal and Ajaib Hussain Shah about the manner of the appellant's arrest, and I may recall here that the appellant's plea was that he was arrested as he was walking in the bazar. Now P. W. Ajaib Hussain Shah admitted that the appellant had been arrested near the Moni Bazar, and in his examination-in-chief in the Sessions Court he supported P. W. Pinjal's claim that the appellant was arrested on P. W. Pinjal's orders and that no other police officer was around except two police constables. He said in this connection "only Muhammad Pinjal prepared the mashirnama of the arrest of the accused and not Zarrar Khan who was not present there." He even denied having made any statement to the contrary in the lower Court, but he had said in the lower Court "Mr. Muhammad Pinjal and Zarrar Khan had prepared mashirnama at the place where the accused had been secured." As the appellant's plea in both the Courts was that he had been arrested by Zarrar Khan, I am disturbed by this discrepancy, and there is force in Mr. Ghulam Nabi Memon's criticism of the evidence of .P. W. Pinjal and his criticism of the conduct of the investigations.

24. In view of this discussion, it would not be safe to reply on P. W. Pinjal's assertion that the gun of the appellant was smelling at the time of the appellant's arrest. And this means that the prosecution has only proved his arrest with a gun which contained' an empty, and that between 30 or '50 minutes (vide P. W. Pinjal's evidence) or one hour (vide P. W. Pir Muhammad Wans) after the occurrence. Mr: Nasiruddin therefore pointed out that even if the prosecution evidence was discrepant, it falsified the appellant's plea that he had been arrested in the evening. This is true, but it does not help the prosecution to explain away the delay in lodging the F. I. R. Which is important in the circumstances discussed. Mr. Nasiruddin then submitted that the appellant had to explain the presence of the empty in his gun and that his explanation about firing at a dog was patently false. Now the gun was admittedly the appellant's licensed gun, and as I am pot able to accept the plea that the gun was smelling I do not think the appellant's explanation was any more absurd than the claim of the several eye-witnesses that they had not given the appellant's name to any spectator after the occurrence or that the police had not made any enquiries from them until some days after the occurrence. In any case, even assuming that the appellant's plea is false, this does not help the case of the prosecution, because, as observed by Sajjad Ahmed Jan, J. In Ilahi Bux and another v. State (1969 SCMR 584) the fact that a plea advanced by the accused fails "should not' recoil to his disadvantage, for the drawing of any inferences regarding his guilt which has to be clearly and satisfactorily established by the prosecution." Therefore, "as the onus always remains on the prosecution to prove its case," the question is whether the proof of the appellant's arrest with a gun contain--ing an empty is sufficient to prove his guilt? I have given anxious thought to this question. Bearing in mind, the enmity between the parties, the failure to lodge the F.

I. R. Before the arrest of the appellant and the conduct of the investigation, in my humble opinion, the arrest of the appellant is neither sufficient to prove his guilt nor is it sufficient to corro--borate the ocular evidence which is not fit to be accepted without corroboration by independent and reliable evidence.

25. In the result, the prosecution has failed to prove beyond reasonable doubt the appellant's guilt. I would therefore set aside his conviction and sentence and allow his appeal.

ABDUL HAYEE KURESHI, J.-I have had the advantage of reading the judgment of my learned brother Dorab Patel, J. I regret I am unable to agree with him, and for that reason I am writing a separate judgment.

The facts of the case have been given in the judgment of my learned brother and it is not necessary for the purpose of this judgment to repeat the same.

3. The prosecution case against the present appellant is sought to be established on the ocular evidence of P. Ws. Samo, Jan Muhammad, Ghulam Muhammad, Jiwat Mal and Police Constable Ajayab Hussain Shah. Besides the ocular testimony of these witnesses there is the evidence of Police Inspector Muhammad Pinjal and Pir Muhammad Waris, who have given evidence with regard to the immediate apprehension of the appellant and simultaneous recovery of the gun and spent cartridge from his possession. This spent cartridge according to the evidence of Ghulam Sarwar, the Ballistic Expert had been fired from the licensed-gun of the appellant. Besides, there is the evidence of motive emanating from the enmity that existed between the appellant and the deceased.

4. The learned trial Judge had in his judgment discussed all the available pieces of evidence against the appellant and came to the conclusion in regard to his guilt.

5. In the statement of the appellant some admissions have been made. While he denied having committed this crime, he admitted the recovery of his gun. He went on to explain that on the day of the incident, which is also the day of his arrest, he had brought his gun to Nawabshah and had spent a cartridge for killing a dog that had attacked him on the way. It would thus seem that the appellant admitted the recovery of the gun as well as the spent cartridge from him. He has, however, disputed the evidence of the prosecution in relation. To the circumstances under which he was apprehended. He stated that Muhammad Pinjal did not arrest him but it was A. S. I. Zarrar Khan, who arrested him in the Town of Nawabshah, the same evening. With regard to the eye- witnesses he stated that all of them were connected with deceased because Samo was his servant, Jiwatmal his partner, whereas Jan Muhammad and Ghulam Muhammad were the political supporters of the group of Jatois which was the rival group to Syed Group during the Elections. It was his case that he had during the Elections supported the group of Syeds against the group of Ghulam Mustafa Jatoi. He also went on to state that he had been involved on account of suspicion because if the-deceased had been murdered he would naturally be suspected on account of his long standing enmity.

6. In this case the incident occurred at about 10 a.m. And the place of incident was the compound of the Court of Civil Judge and First Class Magistrate, Nawabshah. It was a working day and a case in which the appellant was the complainant against the deceased was fixed on that day for hearing. It is needless to state and in fact the evidence is abundantly clear that many people were present within the Court premises at the time of this murder. There is also no dispute on the point of the deceased having met his death within the Court compound. It is also abundantly clear on record that two or three days prior to the date of this incident the proceedings instituted at the instance of the appellant against the deceased had been quashed by the High Court. In fact an application was made by the deceased in the Court on the same day and by this application the fact of quashment of proceedings by the High Court was communicated to the Magistrate who directed the deceased to produce the order of the High Court whereby the proceedings against him bad been quashed.

7. The first question that has to be considered in this case is whether the evidence of eye-witnesses is reliable and true. The first eye-witness in this case is Samo (P. W. 4). This witness is admittedly the driver of the deceased and there is no serious controversy on this fact. It is also in evidence that the deceased lived at a distance of about 14 miles from Nawabshah Town. It is stated in the evidence of Samo that he was present within the Court premises because the car of the deceased was parked within the Court compound. It would thus seem that this prosecution witness had a good reason for being present on the scene. This prosecution witness has given a detailed account of all the circumstances and facts in the case. He has stated that the appellant was present in the Court and was at that time armed with a gun. He has clearly stated that he saw the appellant firing the gun which resulted in injuries to the deceased who collapsed on the spot and died within a very short time. This witness has also deposed in regard to the appellant running from the Court and being chased by Muhammad Pinjal Inspector. He has stated that Muhammad Pinjal was at that time accompanied by Saindad and he chased the appellant in a car. He has also stated that since the appellant had levelled his gun at Inspector Muhammad Pinjal, the latter had ordered a police man to make an aerial fire and it was thereafter that the appellant lowered his gun and surrendered. This witness has also given the route that was followed by the appellant for the purpose of effecting his escape. The F. I. R. Was also lodged by the same witness at Nawabshah Town Police Station at 10.30 a.m. Viz. Within half an hour of the occurrence. This report is a detailed document which not only gives the motive for the crime, but also discloses the names of eye- witnesses Jiwat Mal, Jan Muhammad and Ghulam Muhammad. This report also gives a graphic description not only in regard to the act of shooting by the appellant, but also the manner in which he was overpowered, arrested and brought to the police station.

8. Mr. Ghulam Nabi Memon, the learned Advocate for the appellant has attacked the evidence of this eye-witness on the ground that this witness besides being a servant of appellant, is not satisfactorily shown to be present at the scene. His contention is that this witness was subsequently called at the police station on the same evening and thereafter the report was recorded. With regard to the interestedness of this witness there is nothing to indicate that he has any personal animus against the appellant. All that is said is that since he was a servant of deceased Ghulam Kadir, he should be treated as an interested witness. Whether he is an interested witness also cannot be inferred from the mere fact of his being a servant of the deceased, but even if he were to be treated as an interested witness, the question is whether his evidence is true and reliable, and if his evidence was otherwise to be believed all that the law requires is to look for some corroboration as may lend an assurance to the evidence of this witness.

Since it is the contention of the learned Advocate that the First Information Report in this cage was belated, I will examine that aspect of the case immediately. The First Information Report contains two columns at its top. The first column denotes the time of occurrence and the second, time of report. There is an over-writing in both these columns. This circumstance was also brought to the notice of the trial Court and was considered by the trial Court. I have myself seen the original documents and I have found that instead of showing the time of incident to be 10 a.m. And the time of report to be 10-30 a.m., the scribe had inverted the order of these entries so that the time of incident was shown to be 10-30 a.m. And the time of report was shown to be 10-00 a.m. This would be palpably absurd and I have no doubt that this was a mere mistake. Although A. S. I. Zarrar Khan failed to explain as to who may have made the corrections but he clearly stated as follows:- "It is not a fact, that the information was given to (me) about this crime by Samo in the evening at the scene of offence where I recorded his F, I. R. But have wrongly shown the time as 10.30 am."

The same Police Officer clearly explained this mistake and that also in cross-examination when he stated as follows:- "The time of incident is shown as 10-30 a.m. And the time of report is also shown as 10-30 a.m. It, is not a fact that the time of report is shown as 10 a.m. But later this was ever-written over 10."

The learned trial Court made an observation in the deposition of this witness to the following effect:- "Note.-To the naked eye it appears that the 3 have been over-written on 0 in the column regarding date and time of the report. This makes the position absolutely clear. It appears that this was a pure clerical mistake or error which was corrected innocently and honestly."

Even the circumstances of the case clearly indicate that this report had been lodged at 10-30 a.m.

There is very clear evidence of Police Inspector Muhammad Pinjal, Police Constable Ajayab Hussain Shah, A. S. I. Zarrar Khan and the complainant Samo that the report was recorded at 10-30 a.m. It cannot be overlooked that this murder took place in a Court compound and the evidence discloses that the police station was across the road. Such an occurrence must have come to the knowledge of the Police Officers immediately. In those circumstances a report would naturally be filed immediately. It is inconceivable that the report was lodged in the evening and Samo had come to the police station in the evening. Deceased Ghulam Kadir is stated to be an influential man of Nawabshah District. It is also in evidence that one Imam A.I Umar, a sitting member of the Provincial Assembly had come on the scene immediately after the murder. Under those circumstances it would idle to even conceive that a report should not have been lodged immediately. What is more that the appellant was also arrested before 10-30 a.m. And brought to the police station alongwith the crime weapon. It is absolutely inconceivable that in spite of the appellant having been brought to the police station the Police would not have registered this case and would have waited till the evening awaiting the arrival of Samo complainant. Dr. Muhammad Sharif, who performed post-mortem on the dead body of the deceased had performed post- mortem at 1.45 p.m. And this would also indicate that the report must have been lodged earlier and not in the evening as is being argued before us. The dead body was sent by the Police for examination. Furthermore the First Information Report shows that the appellant had been arrested before the report was lodged. If the appellant had not been arrested before the lodging. Of the report, a mention about his arrest in the report itself would be inconceivable. No Police Officer having even the slightest responsibility would show an accused person to have been arrested if the accused had in fact not been arrested. His stakes would be very heavy and it cannot possibly be imagined that a Police Officer will show a person to be in custody when in fact he was not, unless the Police Officer would be absolutely certain of his availability. That being so, I am clearly of the view that the report was lodged at 10.30 a.m. i.e. Within half an hour of the occurrence.

The learned Advocate for the appellant has, however, drawn our attention to the evidence of Police Inspector Muhammad Pinjal wherein it has been stated by the witness that he had arrested the appellant at 10-50 or 10-30 a.m. The argument of the learned Advocate is that on the basis of the evidence of Muhammad Pinjal, who has stated the time of arrest to be 10-50 a.m. The First Information Report becomes a suspicious document because the same shows the time of report to be 10-30 a.m. I have seen the Sindhi deposition of this witness wherein he has stated the time to be 10-15 or 10-30 a.m. The English deposition is typed and the Sindhi deposition is hand-written.

Both the depositions are signed by the Sessions Judge. I am of the view that a mistake has crept in the English record. Whenever a person gives approximate time, the earlier limit of time is mentioned by him first and the latter limit thereafter. In common parlance a person will always mention that a particular event occurred at 10 or 11 a.m., but it would indeed be very rare that he would state 11 or 10 a.m. Moreover, it is the Sindhi record and the deposition that conforms to all the established circumstances of this case. I have, therefore, no hesitation in coming to the conclusion that it is a mere typographical error that has resulted in the mention of 10-15 a.m. As 10-50 a.m. In fact it appears that a mistake in regard to the two words "50" and "15" has occurred. Both the words have very similar audible effect.

9. Looking to these circumstances I am clearly of the view that the First Information Report in this case is very prompt. The incident took place at about 10 a.m. And thereafter the appellant started running and was caught after the chase of about two furlongs (half call's distance). Thereafter a mashirnama was prepared with regard to his arrest which must have taken 5 to 10 minutes and it would take sometime before the appellant was brought back to the police station. This delay of half an hour has satisfac--torily been explained. However, the grievance of the learned Advocate that since the incident had occurred in the Court premises, some persons should have run-up to lodge the report or the report of the firing should have attracted some Police Officers from the police station which is situated across the road to the scene and under those circumstances a report should have been lodged earlier. This argument would have some weight had it not been for the time that has been consumed in chasing the appellant and bringing him back. The persons present on the spot knew that the appellant had run away and was being chased. The appellant was actually caught and the fact of his apprehension had come to the knowledge of the persons present in the Court premises and for that reason it would be very reasonable for everyone to wait and find out the result of this chase. I am, therefore, of the view that the First Information Report is not delayed and was in fact very prompt.

10. The evidence of Samo has been criticised by the learned Advocate for the appellant on the ground that it was inconsistent with the medical evidence. Samo in his cross-examination had stated that after the deceased came out of the Court room, he proceeded alongwith him towards the car. He went on to state that the appellant fired at the deceased from a distance of 10 or 15 paces. The learned Advocate for the appellant has pointed out from the evidence of medical officer that the deceased had been shot at from a distance of 6 or 8 feet. In my humble view this minor discrepancy is not sufficient to disbelieve the evidence of the complainant Samo. In that context I will first refer to the medical evidence that is available on record. Dr. Muhammad Sharif, who is aged only 26 years and for that reason must be having very scanty experience in performing the post-mortem examination on the dead body. He has stated in his examination-in- chief that the distance between the end of the gun and the deceased would be nearly 6-8 feet and he has further stated that all the injuries were the result of one shot. His examination also revealed the presence of one "cot board" (perhaps card board) from the first injury which was the wound of entry admeasuring 2--- in diameter which had penetrated the right side of the heart after fracturing 4th and 5th cartilage. In cross-examination the medical officer stated as follows: "If two or three persons are standing by the side of the deceased within a radius of 1 to 2 feet they are not likely to be hit by shot fired at the deceased. If the assailant fires from a distance of 12 to 30 feet then in that case the pellets are likely to be spread and hit the person standing by the side of victim."

It would appear that cross-examination was directed at probing into the possibilities of injuries to other persons on account of spreading of the pellets. In that context the distance between the assailant and the victim as suggested in cross-examination was put at 12 to 30 feet. The question itself was very vague and broad and the answer in such a case cannot be but very broad and vague. On the other hand the medical officer gave the distance between the deceased and the end of the gun to be 6-8 feet. He has given no reasons for coming to that conclusion. No doubt there were exit wounds, and that would show that the assailant was quite near but to state that the gun-man would only be 6-8 feet from the victim is becoming more exact than the probabilities of the case warrant. After all medical evidence is a matter of opinion and can be used to demolish prosecution case only in circumstances when it is found to be so inconsistent that a point of confirmity cannot be obtained. There is no evidence that there was any charring or blackening and for that reason it is safe to assume that the assailant was at some distance from the deceased.

The presence of the wad (which is perhaps being referred to by the medical officer as the card board) in the dead body would tend to show the distance between the barrel of the gun and the deceased. Synder in his book on "Homicide Investigation", VI Revised Edition, at page 120 has considered the inference that can be drawn from the presence of a wad in the dead body and has stated the case as follows:- "Wadding.-Shot-gun shells use wads made of compressed paper or felt to separate the powder charge from the shot, and other wads to keep the shot from falling out of the cartridge. In the case of wounds made by a shot-gun fired from a distance within ten feet, the wadding almost always be found buried deeply in the tissues of the body. It is important that they be recovered and preserved, because they indicate the gauge of the gun used. The retention wad also often has printed upon it the make of the shell, as well as the size of shot and type of powder. When a shotgun is fired out of doors, the wadding seldom travels beyond 40 or 50 feet, and if a diligent search is made, the wadding can often be found."

The above passage clearly shows that in case a shot is fired from a distance within 10 feet, the wadding would usually get buried in the tissues of the body. But wadding can travel up to 40 or 50 feet. It will then depend upon direction. The learned author has not precluded the possibility of the wadding lying buried in the tissues of the body in, spite of the shot having been fired from a distance exceeding 10 feet.

Moreover, P. W. Samo has disclosed in his evidence that he was proceeding towards the car and it is quite possible that he may be making even an honest mistake in regard to distance between the gun-man and the deceased. I cannot give more importance to this discrepancy except on assumptions of an honest mistake on the part of P. W. Samo. After all the confusion and terror that must have prevailed immediately after the incident has also to be taken into consideration and it cannot be overlooked that immediately after the tiring Samo started chasing the appellant. Other prosecution witnesses gave the distance between the appellant and the deceased to be shorter.

However, in my humble opinion I do not find the medical evidence to be so incompatible with the evidence of Samo as to conclude that that evidence of witness is false; more so when his presence at the scene is conclusively established. For the same reason the omission on the part of Samo to mention the presence of smell and smoke in the gun of the appellant is explained.

The learned Advocate also criticised the evidence of P. W. Samo on the ground that in cross- examination he had made varying statements on the point as to whether he was proceeding towards the car along with the deceased or he was ahead and the deceased was following him.

No doubt in the F. I. R. This witness had stated that he was accompanying deceased Ghulam Kadir towards the car and when he was examined in Court he gave an explanation by saying that the deceased was following him at a little distance. In my view both these statements could be reconciled and the slight variation does not rob his evidence of its value. In fact since he was a servant he would naturally not be walking along with his employer and he must be keeping some distance. In those circumstances it could be reasonably said that both the servant and the employer were going together, although one may be ahead of the other at a distance of 4 or 5 paces.

The evidence of Samo has also been criticised on the ground that Muhammad Pinjal had stated that he did not see Samo at the place of the arrest, but the Police Officer has stated that he saw him at the police station. Witness Samo has stated that as soon as the appellant was caught he returned to the scene. His returning to the scene is understandable because his employer had been shot and he had chased the assailant and as soon as he was sure that the assailant had been arrested he returned. Nothing much turns on this statement in the evidence of Muhammad Pinjal. There is no evidence that Muhammad Pinjal knew Samo before the incident and looking to the confusion that must have prevailed at the lime of chase the mere fact of Muhammad Pinjal not having seen or recognized Samo is not of any consequence.

It has lastly been urged by the learned Advocate that complainant had attempted to implicate some innocent persons in this crime. He based the argument on the following statement in the F. I.

R.: "Then Haji Imam A.I Unar also arrived at the wardat to whom I related the above incident. He advised me to go and lodge the report with the police. There is hand of many other persons in the murder of Ghulam Kadir Khan for which his son Ilahi Bux would give the details as he is not present at this time."

I do not see how this statement could be termed to be statement designed to implicate any innocent person. The witness was cross-examined on this point and gave a simple explanation. He stated that he knew before the incident that the deceased would be murdered because the "accused was so giving out". He had however categorically stated that he could not say if any body else had a hand in this murder. There is a background of enmity between the deceased and the appellant and several cases the judgments whereof have been produced on the record existed between them. In each of these cases several persons have been involved. Under those circum-- stances the statement of Sumo that some other person had a hand in this murder could not be termed to be an attempt at implicating any person falsely. In any case the fact of the matter is that there is only a single accused in this case.

11. The evidence of Samo to my mind is convincing and true. This witness no doubt is a servant of the deceased but had no personal animosity against the appellant. He belongs to a different case and had been in service of the deceased only for two or four years. He could not be termed to be an interested witness but even if his evidence needs corroboration it is available on record.

12. The other set of witnesses consists of P. Ws. Muhammad Pinjal, Inspector, and Ajayab Hussain Shah, Constable. Both these witnesses are Police Officers and none of them is concerned with the investigation of this case. On the other hand nothing has been brought on the record to show that any one of them had any personal grudge against the appellant. The presence of Police Constable Ajayab Hussain Shah is, apart from his evidence also established by a document (Exh. 52) which is the certified copy of the "common roznamcha" (daily diary) of the police lines, Nawabshah. This document shows that Constable Ajayab Hussain Shah had escorted 15 prisoners to the Court on 26-8-1968 viz. The day of incident and that the police escorts was armed with rifles and ammunitions. Whereas Constable Ajayab Hussain Shah had brought the prisoners including the co-accused with the deceased, Inspector Muhammad Pinjal had come to the office of the Sub- Registrar along with one Saidino. The Inspector explained that Saidino who was his co-villager and had come to meet Sub-Registrar in con--nection with some work.

13. Inspector Muhammad Pinjal has stated that when he was sitting in the office of the Sub- Registrar he heard a gun-report. On hearing the report he looked through the windows and found one person running away with a gun in his hands. Since that person had already traversed about 50 paces he got into the car. Saidino was with him. He also saw Constable Ajayab Hussain Shah, H.

C. Muhammad Hayat and a few persons chasing the escapee. When Muhammad Pinjal reached near the person who was running away he got down from the car and started chasing the same person. While this chase was progressing, the Person with the gun who is the appellant in the case, levelled his weapon at constable Ajayab Hussain Shah. Muhammad Pinjal directed constable Ajayab Husain Shah to fire in the air and on such fire being made the appellant lowered his gun and was caught. The gun was secured in presence of mashirs Saindad and Pir Waris, the latter out of whom has been examined in Court as P. W.

3. The gun was examined and from its right barrel an empty fired cartridge was recovered. The cartridge in the left barrel was live. A mashirnama was pre--pared and the same has been produced on record as Exh.

9. Pir Muhammad Waris and Inspector Muhammad Pinjal have stated that the barrel and the spend cartridge smelt of recent firing. Unfortunately we have no means in this country of detection of mercury vapour and therefore the only evidence with regard to recent firing can be furnished by smell of gun-powder still left in the barrel. The fact of the existence of the smell in the barrel is also mentioned in the mashirnama.

The appellant was thereafter brought by Police Officers to the police station and was handed over to A. S. I. Zarrar Khan. Samo who was present at the police station has also mentioned in the F. I. R.

That after the appellant ran he chased him and Inspector Muhammad Pinjal and other policemen also chased him, Muhammad Pinjal has not stated in his evidence as to whether appellant fired a shot but his evidence is very valuable to the prosecution as the same furnishes strong circumstantial evidence against the appellant. Immediately on hearing the shot he saw the appellant running with the gun and there is not even a suggestion in cross-examination indicating as to whether any other person might have committed this offence. The appellant was the only person running away from the scene of offence with the gun. The recovery of a spent cartridge from the gun is still another strong link in the chain. Constable Ajayab Hussain and Samo have fully supported the evidence of Muhammad Pinjal. The appellant himself in his statement has admitted his apprehension in the Town of Nawabshah on the same day although the time given by him is different from the time given by the prosecution and he states that he had not been arrested by Muhammad Pinjal but by Zarrar Khan. I have already in the earlier part of the judgment attempted to show the falsity of this statement as the same can not be reconciled with the established circumstances of this case. I may also state that the recovery of a spent cartridge from one of the barrels of the gun is admitted by the appellant. This gun was sent to Sardar Saeed Gul Khan, the Ballistic Expert (P. W. 10) who has given evidence on the basis of composite Micro Photographs prepared by him. His evidence is clear on the point that the crime empty had been fired from the gun in question. With regard to ownership of the gun, the same being licensed there is no dispute.

14. The evidence of Muhammad Pinjal has been attacked by the learned Advocate for the defence on ground of some minor variations as compared to some other evidence in the case. A long argument was sought to be built up on the point of the witness having stated the time of the arrest of the accused as 10-50 or 10-30 a.m. I have already dealt with that point in the earlier part of this judgment. I have already stated when time is mentioned as 10-50 a m. It is an obvious mistake. In fact the witness has stated the time to be 10-15 or 10-30 a.m. The evidence of Muhammad Pinjal has been attacked on the basis that he had not mentioned any time in the mashirnama of arrest.

No doubt the witness has stated that rules required him to show the time of the mashirnama, but he explained that the same had not been shown on account of oversight. However, this omission is not of much consequence because the arrest of the appellant before 10-30 a.m. Is conclusively established on the record. The witnesses have given the time of incident as 10 a.m. And therefore the arrest has taken place between 10 and 10-30 a.m. It has also been argued by the learned Advocate that his statement was recorded after two days and therefore he should not be believed.

Recording of statement is the function of the investigating officer. In the present case the F. I. R.

Mentions the name of Muhammad Pinjal and the evidence discloses that Muhammad Pinjal had arrested the appellant and brought him to the police station. Under these circumstances it was the duty of the Investigating Officer to record his statement and if any reason has delayed the same, the value of the evidence of that witness cannot be reduced on that account. His evidence is attacked also on the ground that Pir Waris had given the time of arrest as 11 a.m. It must not be forgotten that the witness was picked up on the road unawares, without previous warning. In the muffussil rarely would any witness give exact time and in every case as to time, limit of time is given by approximation. The incident had taken place at 10 a.m. And even this point of time is just approximate, and an allowance or margin of some minutes bas to be conceded. It is not stated by the witness that he had consulted a watch at that time and such minor contradiction cannot assume importance. The fact of the matter is that he acted only as a mashir. He states that immediately after preparation of the mashirnama he went away. The learned Advocate has also raised an argument though faintly that Muhammad Pinjal should have returned to police station in the car. This has not appealed tome because the car did not belong to him. In any case the appellant was arrested at a distance of half a call which may roughly be two furlongs and the distance was not that long as should have necessitated a lift in the car. The next point in criticism of this witness is that the question regarding existence of smell and smoke in the barrel of the gun and the spent cartridge was asked in a leading form. The question was allowed by the Court and the question was not put in a manner as might have suggested an answer. All that was asked was taken in the form of a question and answer and not in narrative, perhaps because the Advocate for accused objected to it. But the point is whether the question suggested an answer. Obviously it did not. It was natural for the witness to examine the gun and cartridge which he states he did.

Moreover, the arrest of accused, recovery of gun and spent cartridge is not disputed by the appellant. I completely rely on the evidence of Muhammad Pinjal, who is an independent witness.

To my mind the evidence of Muhammad Pinjal in spite of his not having seen the appellant firing is so weighty that in absence of any reasons detracting from value of his evidence proves the case of the prosecution almost to a point of conclusion.

15. Coming to the evidence of Ajayab Hussain Shah I have already shown that his presence in Court premises could not be doubted nor has any attempt been made before us to cast doubt on his evidence. His evidence in regard to apprehension of the appellant is thoroughly consistent with the evidence of Samo and Mohd. Pinjal. He is in no manner shown to be interested in the deceased or the complainant party. His evidence has been attacked by the Advocate for the appellant on the basis of a statement before the police that he did not actually see the appellant firing at the deceased. No doubt this witness in Court had stated that he saw the appellant firing on the deceased. The, contradiction on the basis of his police statement was proved through D. S. P. Pir Bux, who stated as follows-.- "He has not stated that he saw the accused fire his gun at the deceased and that the deceased put his hands on the chest and fell down."

A further contradiction has been brought out in his evidence. To a question he replied as follows:- "I had stated before police that the accused in Court is same who had fired at the deceased."

I have not been able to understand as to what might be the actual import of this statement because the appearance of the accused in Court will necessarily be an event subsequent to the recording of the statement of the witness. However, even though this contradiction is established the remaining portion of the evidence of Ajayab Hussain cannot be overlooked. The most important features of his evidence are his presence at the scene of occurrence, his chasing the appellant, his firing at the appellant in order to subdue him and the arrest of the appellant. In cross-examination which has indeed been very long an attempt has been made to show that he had not seen the appellant having a gun at the time of the incident. On this point his evidence was that when the accused was called the appellant kept the gun in the verandah and asked one person with moustaches to take care of the gun. He had gone on to say that he even asked that man not to stand with the gun near the Court and then the man with the moustaches moved a few paces away from there. He further stated that the appellant came out and met the man with moustaches; the man who was holding the gun of the appellant. This statement has come out in cross-examination and on the basis of such a statement the conclusion is inescapable that the appellant was present in the Court and that he had a gun. The witness has further stated that immediately after the case was adjourned, the appellant came out followed by the deceased and the co-accused. On that view of the evidence I am left in no doubt whatsoever that the appellant was present in the Court with the gun on the day of the incident. Whether the appellant did go inside the Court room or just kept out in the verandah is a different matter and I entirely agree with my learned brother that it is possible that the appellant did not enter the Court room. However it is established beyond doubt that the appellant was present in the Court.

16. There is a further circumstance which lends assurance to the evidence of Ajayab Hussain Shah.

He has stated in his evidence that the empty cartridge of the rifle bullet which he had fired had been given by him to A. S. I. Zarrar Khan. That statement has not been challenged at all. This witness is thoroughly independent and that is also clear from the fact that he did not claim to identify the other eye-witnesses namely Jan Muhammad and Ghulam Muhammad.

17. Having dealt with the evidence of this set of witnesses I now proceed to examine the evidence of P. Ws. Jan Muhammad, Ghulam Muhammad and Jiwatmal. Out of these witnesses Jiwatmal is a partner of the deceased, Jan Muhammad is a nephew of Imam A.I Unar, whereas Ghulam Muhammad was at one time a Kamdar of Shamsuddin Jatoi, an uncle of Ghulam Mustafa Jatoi.

The evidence of these three witnesses is to the effect that they had come to the Court on account of some work that they had with the deceased and that they had seen this incident. Each one of these witnesses has stated that he was present in the Court at the time of firing and each one of them has also stated that shortly after the firing Samo returned and gave the information about the apprehension of the appellant.

The learned Advocate for the defence has attacked the evidence of these witnesses on several grounds. His first contention is that their statements were recorded by the Police after two days. In that context it cannot be overlooked that the names of these three witnesses were mentioned in the F. I. R. As eye-witnesses. The F. I. R. Was prompt and A. S. I. Zarrar Khan visited the scene immediately after the report was recorded. The evidence of A. S. I. Zarrar Khan will in that context require examination in juxta--position with the evidence of these three witnesses. The point of inquiry is whether the witnesses were unwilling to give statements or whether Zarrar Khan or his successor Police Officer D. S. P. Pir Bux did not attempt to record the statements of these witnesses.

Zarrar Khan in his evidence and in cross-examination before the Court had stated as follows: "That when I reached the scene of offence the eye-witnesses mentioned in the F. I. R. Were not present at the scene of offence. (Note.-- He has so stated extract Exh. 49). I had again stated in the lower Court that the names of persons mentioned in the F. I. R. Were there and while I was going to the police station from the scene of offence some persons met me on the way and one of them was Jiwatmal who I did not know before. I did not know the eye-witnesses mentioned in the F. I. R.

Before. I had stated in the lower Court and it is correct that I interrogated from the persons at the scene of offence but they had no knowledge about the incident. I have not recorded the statement of any person at the scene of offence. I did not examine the persons, who had come to the Police Station with the complainant because I did not consider it necessary."

Although investigations had been taken over by A. S. I. Zarrar Khan he was relieved of his duties as investigating officer the same evening under the orders of the Superintendent of Police. The investigations were then handed over to Pir Bux, a D. S. P. Holding charge of another Sub-Division of Nawabshah District. This Police Officer namely Pir Bux has stated as follows:- "I did not make inquiry from any person from the hotel or the offices adjoining the wardat on that day because it was evening time and nobody was present. I made efforts to examine such witnesses on the next day, but nobody came forward to give evidence. Jan Muhammad, Jiwatmal and Imam A.I Unar came together in my Office in Police Headquarters when I recorded their statements."

It has also come in evidence that these three witnesses had accompanied the dead body to the village of the deceased and continued to remain there until Soyem viz., till 28-8-1968.

Taking all these statements and circumstances together the position that emerges is that the names of these three witnesses were mentioned in the F.I.R. And for that reason the duty clearly devolved on the investigating officers to have examined them without any loss of time. A. S. I. Zarrar Khan has stated that he went to the scene of offence and he saw at least Jiwatmal who was named in the F. I. R. But all the same did not record his statement. In fact the witness went on to say that he did not consider it necessary to examine the persons who had come to the police station.

This police officer has stated that these three witnesses had gone away alongwith the dead body to the village of the-deceased. The village of the deceased is situated at about 14 miles. Admittedly A. S. I. Zarrar Khan did not go to the village of the deceased nor has he stated anything in his evidence to show that he took any steps to secure these witnesses or record their statements. It seems that investigation was taken away from him the same evening on account of such gross dereliction in his duties. A serious crime had been committed and the F. I. R. Had named the eye- witnesses. In that case no inference adverse to the prosecution case could be drawn because it was then the duty of the police officer to have examined the witnesses. Similarly even the D. S. P.

Has just made a vague statement that he made efforts to examine the witnesses on 27-8-1968.

What were those efforts are left to the imagination of the Court. The efforts that were required in the circumstances were to have proceeded to the village of the deceased or at least sent a police man to call the witnesses. This none of the two police officers attempted to do. In fact according to D. S. P. Pir Bux, the witnesses Jan Muhammad and Jiwatmal themselves came for making statements to the Police. The police officer has clearly stated that they had come voluntarily and he had not called them. On the other hand none of the witnesses had been called by the police officers. In this context I may also dispose of the criticism that the persons present on the scene did not lodge the report before Samo complainant returned after arrest of the appellant. It is abundantly established on the record that complainant at the time of lodging the report was accompanied by some Advocates. On the one hand it would be interesting to consider that A. S. I.

Zarrar Khan admitted in his evidence that he did not make any inquiries from these advocates in spite of their being available. On the other hand the circumstance is worth considering that in spite of gun report no police officer from the police station even cared to come to the wardat, an assertion absurd in the extreme. I would under the circumstances observe that this is, .If not untrue, extreme dereliction in duties which had necessitated and justified transfer of investigation from A.

S. I. Zarrar Khan. I cannot persuade myself to believe that no one at the police station heard gun--- report and for that reason the conduct of A. S. I. Zarrar Khan has been far from fair and it is precisely this conduct which might have persuaded the Superintendent of Police to transfer the investigation to some other police officer.

No doubt delay in recording the statements of witnesses is a material fact for consideration but the causes for the delay cannot be overlooked. There may be cases where witnesses are not mentioned in the F. I. R. But are produced before the Police at a later stage of investigation. In such cases the value of the evidence of such witnesses will be considerably diminished and in proper cases their evidence may not even be relied on. But in the instant case the circumstances clearly show that the delay was caused on account of the police officers and in such a case it would not be fair or just to draw an inference against the prosecution witnesses especially when the evidence discloses that they . Voluntarily appeared before the police officer. All the witnesses have stated that they were at the village of the deceased until Soyem ceremony. Their absence from Nawabshah is as such understandable. In the circumstances of this case I am formidably of the view that the value of the evidence of these witnesses does not get diminished on account of delay in regard to statements. The other contention with regard to non-production of blood-stained clothes before the police is also not very material in this case. Witnesses were not asked by the police to preserve the clothes, and that being so no adverse inference could be drawn.

The last point of criticism against these witnesses is on the ground of their interestedness. None of these witnesses has any personal enmity against the appellant. All that is being said against P. W.

Jiwatmal is that he is a partner of the deceased. Merely because he was his partner in his business will not make him an interested witness. With regard to the witness Jan Muhammad it is said that because he is a nephew of Imam A.I Unar, a rival of Ghulam Shah in the elections, he was an interested witness and against Ghulam Muhammad. It is said that he was at one time a Kamdar of Shamsuddin Jatoi. There is no doubt that the deceased and the appellant were supporting rival candidates at the elections that were held in 1965. The incident had taken place before the elections of 1970-71 were held. In regard to these elections and the rivalry P. W. Jan Muhammad has summed up the entire picture:---- "We had thick connections with the deceased and we used to visit each other. I, my uncle Imamali, the deceased and Ghulam Mustafa Jatoi belong to one political group. In 1962 Provincial Assembly Elections Gullan Jam bad opposed my uncle Imamali, Gullan Jam is the 'headman and partyman of the accused. Gullan lost. The accused and his relations had supported Gullan Jam and were voters. In 1965 Elections Shabbir Ahmed Shah opposed my uncle Imamali in Provincial Assembly Elections and accused and his relations supported Shabbir Hussain Shah. In 1965 National Assembly Elections Ghulam Mustafa had opposed Zafarali Shah, who lost. We , all, including my uncle and the deceased supported Ghulam Mustafa and Zafarali Shah was supported by the accused and his relations. Until today we are political rivals."

The above-quoted passage from the evidence of Jan Muhammad shows that while Jan Muhammad and Ghulam Muhammad belong to Jatoi group and was supporting that party in the 1965 Elections, the appellant was supporting the rival party of Shabbir Hussain Shah and Zafar A.I Shah. The animosity, if any, would in that case be against Shabbir A.I and Zafar A.I Shah, but no attempt whatsoever has been made to implicate them. It is common knowledge that Elections always divide people in different camps and merely because one person is supporting a rival candidate will not become interested so as to reduce the value of his evidence given at a trial, which relates to an incident completely unconnected with Elections. The evidence discloses that the deceased and the appellant had their own differences which were completely independent of election disputes and for that reason in my view these three witnesses could not be termed to be interested witnesses in the sense that their evidence would require corroboration.

18. Coming to the evidence of Ghulam Muhammad, he did not even state that he saw the appellant firing at the deceased. All that he said in his evidence was to the effect that he had come to the Office of the Mukhtiar kar at about 10 a.m. In connection with his private work and when he reached near he heard the gun report and thereafter he saw that the deceased had been hit on his chest and the appellant running away to the East. Jan Muhammad and Jiwatmal have, however, given consistent evidence stating that they saw the appellant firing at the deceased which resulted in the death of the deceased. The witnesses have been cross-examined and nothing has been brought out in their cross-examination to show that they were giving false evidence. Their entire evidence is consistent with all the circumstances of the case. All these three witnesses have spoken about the presence of Samo and informed that Muhammad Pinjal had arrested the appellant alongwith the gun. Each one of these witnesses has also stated that police officers arrived at the scene, but they were not examined. With regard to the gun of the appellant these witnesses were not very clear as to whether the same was wrapped or covered with any cloth and was visible. But according to me these are very minor and remote particulars and dis--crepancies of such a nature will not rob the evidence of these witnesses of their probative force.

19. On a very close and minute reading of the evidence I am of the view that in spite of the badgering cross-examination to which they had been subjected nothing substantial has emerged as may cast a doubt on their testimony. The contradictions, if any, are of an unsubstantial character which tend to lend a ring of truth to their evidence. I have no hesitation in relying on the evidence of these witnesses.

20. With regard to motive for the crime, the evidence is very glaring. The deceased had been implicated by the appellant in a murder case because he suspected that the appellant had a hand in the murder of his son. The case in regard to this murder was pending in the Court and was fixed on the day of this murder. The proceedings had been quashed by the High Court and that gave an immediate grievance to the appellant. Besides there has been a chain of cases between the parties. I do believe that this evidence of motive can be put in the scales to strengthen the case against the appellant.

21. I will now consider the evidence for the defence. The appellant had examined Mr. Ayub Hasan, Civil Judge, in whose Court the case against the deceased was pending and was fixed on the day of this incident. The witness has produced a certified copy of the case diaries and the diary dated 26-8-68 reads as follows:----- "Accused Ghulam Kadir present on bail, Other accused present in custody. D. P. P. And D. A. Present.

No. P. W. Present. Application/affidavit of accused Ghulam Kadir that proceedings against him have been quashed. He is directed to produce the order of High Court by 29th August 1968. Issue summons to P. Ws. For 9th September 1968. Those present directed to attend.".

An argument was raised that since the diary in the case did not show the presence of the appellant then who was the complainant in the case, the appellant should be considered to have absented himself from the Court on that day. Our attention was also drawn to the diaries of some other dates which showed the complainant's presence. On the other hand on several dates of hearing in the case the complainant's presence had not been shown. The circumstance regarding the omission to show the appellant's presence in Court on 26-8-1968 is therefore inconclusive. My learned brother has already considered this aspect of the case and has arrived at the same conclusion and I entirely agree with him on this point. On the other hand the evidence of the prosecution bears no room for doubt that the appellant was present at the scene. The direct ocular evidence coupled with the very strong incriminating circumstance emerging out of the circumstance of the arrest and apprehension of the appellant at a short distance leaves no room for doubt that the appellant was present in the Court premises on that date. In fact there are some minor contradictions on the point whether the appellant entered the Court Room or kept himself standing outside in the verandah. Be that as it may the fact has been conclusively established that the appellant was present in the Court premises and indeed the appellant had a good reason to be present. Even the diary in the case has shown him as being present on several hearings. I would even for another reason hold the diary dated 26-8-1968 to be inconclusive in regard to presence of the appellant. Mr. Ayub Hassan, the Magistrate has stated in his evidence as follows:---- "As far as I remember, I had written the diary in my own hand on 26th August 1968. Lashkar A.I Shah was my Serishtedar. Mistakes through oversight in recording the presence or absence of the witnesses in the diary are sometimes possible."

The above quoted passage shows that the defence witness could not vouchsafe the correctness of the diary. He had admitted that there is a possibility of mistakes in the recording of the presence or absence of the witness which may be the product of oversight. On the other hand the evidence of this defence witness lends support to the prosecution case inasmuch as it has been stated by the witness that he heard a gunshot outside and he had himself gone out but only after 1-- hours.

22. Having considered all the aspects of this case I am left in no doubt that the prosecution case has conclusively established the guilt of the appellant. In the result I will dismiss this appeal and confirm the sentence, of death passed on the appellant.

MUHAMMAD HALEEM, J.-This matter has come up before me on a difference of opinion between my learned brothers. Dorab Patel and Abdul Hayee Kureshi, JJ. The former his held that the appellant is entitled to the benefit of doubt and has acquitted him and allowed the appeal, while the latter found the case proved against the appellant and, therefore, while maintaining his conviction and sentence dismissed the appeal.

2. It will be unnecessary to recall the facts in this judgment which have been amply stated in the judgment of my learned brother, Dorab Patel, J. The prosecution examined Samo, Jan Muhammad, Ghulam Muhammad Abro, Ajaib Hussain and Jewatmal to furnish ocular testimony in the case.

Samo was the driver of the deceased while Jan Muhammad, and Ghulam Muhammad are of different case and had no relationship with deceased Ghulam Kadir Dahri. Ajaib Hussain is the Police constable and Jewatmal, who is a Hindu, was a partner of the deceased "since about 11 years in his business and cotton ginning factory at Daur". Jan Muhammad, Ghulam Muhammad and Jewatmal were not the residents of Nawabshah. Jan Muhammad lived in his village seven miles away. Ghulam Muhammad Abro resided "about 22 or 24 miles" away from Nawabshah while Jewatmal lived at Haberi in taluka Moro, District Nawabshah. The appellant resided about 12 miles away from the village of the deceased. According to the prosecution case the deceased was one of the accused in the murder case of Muhammad Sadiq Dahri, son of the appellant. The deceased moved the High Court for the quashment of proceedings against him, and upon the proceedings being quashed he came in his car driven by Samo from his village to attend the hearing of the case pending in the Court of Joint Civil Judge and First Class Magistrate, Nawabshah and to file the affidavit. Having reached the Court premises he went inside the Court when the case was called out at about 10 a.m. The appellant is also said to have gone inside the Court after keeping his gun in the verandah "by the side of the wall". Since the witnesses in that case were not present, the Inquiry Magistrate ordered the appellant to produce them on the next date of hearing, i.e. 9th September 1968 against the remaining accused. The appellant came out first and after picking up his gun walked out. The deceased came later and as he was proceeding towards his car, which was parked under the "neem tree" he saw Jan Muhammad and started talking with him. It was while he was talking that he was fired at by the appellant, whereafter the appellant ran away but was chased and captured along with his gun near the house of Amanullah Khan in the heart of the city by Ajaib Khan, Police Constable, who had brought the under--trial prisoners to the Court from the District Jail, and others and also Muhammad Pinjal, Inspector C. I. A. Police, Nawabshah. The incident occurred in broad daylight and the F. I. R. Purports to have been lodged at 10-30 a.m.

Within half an hour of the occurrence. Besides Samo, Jan Muhammad, Ghulam Muhammad and Jewatmal are said to be the persons who had seen the appellant firing at the deceased and thereafter running away from there. They also claim to have stayed on till the arrival of the investigating officer, and then went along with the dead body to the hospital and from there to the village of the deceased where they remained for 2-3 days. Samo stated that he went after the appellant and it was in his presence that the appellant was captured. It is also the prosecution case that inside the chamber of the gun there was one crime empty and one live cartridge.

3. Outwardly, the case appears to be fool-proof against the appellant, but on analysing the evidence the impression disappears. The Police Station was across the street; nonetheless none from the Police Station was attracted on the gun-report which is an unusual feature. It was only when Samo returned after the pursuit was over that at the instance of Haji Imam A.I, to whom he had related the facts, he went to the Police Station for lodging the report and the time stated is 10- 30 a .m. There was no reason for the delay of even half an hour if it is to be accepted that Jan Muhammad, Ghulam Muhammad and Jewatmal were with the deceased when he was shot at.

One of them could have taken the trouble of lodging the F. I. R. Without waiting for Samo to return.

Again, the time of occurrence and of report, which was originally recorded, appear to have been altered. The time of occurrence originally stated was 10-30 but '0' was written over the figure `3' to make it read as 10-00. The time of report was mentioned as 10-00 hours but figure `3' was written over `u' to make it read as 10-30. These over-writings are apparent to the naked eye. It will be interesting to refer to the reply of Zarrar Khan A. S. I. Who had recorded the F.1. R. On this aspect of the case which runs thus:- "I see the F. I. R. No. 104 relating to this offence. The time of incident is shown as 10-30 a.m. And the time of report is also shown as 10-30 a.m. It is not a fact that the time of the report is shown as 10- 00 a.m. But latter there was overwritten over 10. I produce the F. I. R. No. 104 of the 154 Cr. P. C. Book Exh.

48. It bears my hand and signature. (Note : To the naked eye, it appears that the `3' have been overwritten on `0' in the column regarding date and time of the report). I see the F. I. R. Exh.

11. There is a overwriting of three in this also. There is also overwriting in the F. I. R. Exh. 11 regarding time of incident. I had not made the Over-writings in the original F. I. R. Exh. 48, or Exh.

11. These Over-writings were not there when I recorded this F. I. R. F. I. R. No. 103 was recorded on 25th August and F. I. R. No. 105 was recorded on 29August 1968. No other first report was recorded on 26th August except 104."

While admitting that there were over-writings on the copy of the F. I. R. Exhibited in the case he denied any overwriting in the original F. I. R. He also showed his ignorance as to who was responsible for the over-writings. Having taken this stand, no attempt was made to produce the original F. I. R. By the prosecution. In the context, therefore, that no other first report was recorded that day after this report, there is room for believing, as is contended by the learned counsel for theth appellant in the context of the above defects and the features presently to be seen, that the lodging of the report could be timed earlier even though it was recorded much later.

4. The first witness in the case is Samo. His stand is that he was employed as a driver of the deceased and had driven the car that day upto the Court premises. He further stated that he saw Jan Muhammad, Ghulam Muhammad and Jewatmal near the deceased when he came out of the Court and also Akil, another servant of the deceased, who lived in the town and was aware of the date of hearing, keeping guard over the arms, namely gun, rifle and the revolver left by the deceased in the car. Again, he stated that after the body of the deceased was sent for post- mortem examination, Akil remained near the car while Ismail, another driver, brought back the car to the village. In spite of having introduced Akil he admitted having stated in the lower Court that he locked the car and went to the hospital leaving none to look after it. Why were Akil and Ismail introduced is not understandable. Nonetheless, neither Akil not Ismail were examined. If Akil was near the car it is inconceivable that Samo would not disclose his name in the F. I. R. Why would Ismail replace Samo after the incident is again not explained when Samo himself stated that he was the only driver of the deceased. From where the Ismail had come is not apparent and if at all he had driven back the car why was he left out and not examined in the case. Again, none of the arms were found in the car. What happened to them, if it is accepted that Akil was keeping guard over them, is not apparent from the record, but this much is certain that this statement is a lie, which adversely reflects on his veracity. Another feature of significance is that Samo stated that the deceased upon being injured was caught hold of by Jan Muhammad. Ghulam Muhammad and Jewatmal, but there is no evidence to establish it apart from the oral assertion which cannot be given any credence. Even otherwise, Samo did not disclose this fact in the F. I. R. Which appears to me to be an improvement in the case. About the gun of the appellant this witness stated that "it was lying wrapped in a chader in the verandah but was visible a little", upon which he was confronted with his lower Court statement, in which he stated that it was not visible. In the F. I. R. The merely mentioned that the appellant kept his gun in the verandah by the side of the wall. There is, therefore, obvious variation on this point about which other witnesses have also given discrepant versions. He has also given inconsistent version about the examination of the witnesses at the spot, while at the trial he stated that the A. S. I. "did not make inquiries from the witnesses at the wardat" yet in the lower Court he stated that "the S. H. O. Made inquiries from all the P. Ws. But their statements were recorded on 28th September (sic) 1968". This variation has been duly proved. This is not all. Again, he stated at the trial that "the D. S. P. Also made inquiries from the P. Ws. At the wardat" and "also recorded their statements at the wardat". Obviously this is an attempt to show the presence of the P. Ws. But the fact remains that none of the witnesses were examined at the spot. Samo stated that he went alone to lodge the report and that none of the Advocates accompanied him, but 7arrar Khan, A. S. I. Not only admitted the presence of Mr. Anwer Ahmed and Mr. Abdul Hayee, Advocates but also of Imam A.I Unar, Ex-M. P. A. And other persons along with him, which again belies him. From the above an impression is gained that he is not a truthful witness, for his cross-examination is full of prevarications and lies, which is not consistent with the conduct of a person who had witnessed the occurrence. The contention, therefore, of the learned counsel that he was called later on to lodge the F. I. R. Cannot be ruled out.

5. Jan Muhammad is the second witness. He stated that he came to the town in connection with his work with the Executive Engineer but came to the Court to meet the deceased as he knew that he was to come that day in connection with the hearing of the case. However, in cross- examination he stated that he learnt after finishing his work from the house of the deceased in the town that he was attending the Court that day. About the appellant he stated that when the case was called out he went inside the Court along with the gun and so did the deceased but he did not know where the deceased had kept the gun. After the hearing was over the deceased came out, with whom he had a talk, whereafter he called Samo to bring his car. It was then that the appellant fired a shot from a distance of 8 or 10 paces, which hit the deceased and as he was falling he, Jewatmal and Ghulam Mohammad held him and in doing so, his hands and clothes got stained with blood which were observed by the A. S, I. Yet he chid not tell him to preserve them for being secured later on. There is no explanation why they were not secured, for that would have provided evidence of his presence. This statement is obviously false even otherwise, for the A. S. I. Stated that he saw no one with blood-stained clothes or hands. His stand is that he was present along with the deceased. Nonetheless, he was not examined at the wardat. His natural conduct could have been to offer himself as a witness, which he did not do so. Again, he admitted having seen the Joint Civil Judge and First Class Magistrate, the Sessions Judge and `one Jamali Sahib" but neither did they make any inquiries from him nor did he volunteer to give them the facts of the incident. Why was he secretive is a mystery, which can only be explained on the hypothesis that he was not present at the wardat. Further having seen the incident it was natural for him to have lodged the F. I. R. But he gave the explanation that he did not do so as he was "busy in weeping", Which on the face of it is absurd. He also claims that he had accompanied the dead body to the Civil Hospital but Dr. Muhammad Sharif stated that the body was identified by Dr. Muhammad Umer Dahri and Mr. Abdul Hayee, Advocate, and no private person had accompanied it when it was brought to the Hospital, which statement of this witness is again false. About meeting the deceased he gave the explanation that he wanted the deceased to go along with him to the Executive Engineer in connection with his work yet he was unable to disclose its nature. Considered in the context of the fact that he resided 7 miles away from Nawabshah and his presence could not otherwise be accepted except on that hypothesis, it is unbelievable that he would not be able to recall the nature of the work, which circumstance creates a doubt as to the bona fides of the reason given by him. In the context of this background he showed his presence also in the village of the deceased but he was not examined there either. It was only on 28th August 1968 that he voluntarily appeared at the police station along with Jewatmal at the behest of his uncle, Imam A.I, to give his statement.

This delay in the context of the prosecution case that he was present at the wardat but not examined, is highly suspicious. He cannot also be described as disinterested for his partiality is evidenced from his own admission that he "had thick connection with the deceased" and that he, his uncle Imam A.I, the deceased and Ghulam Mustafa Jatoi belonged to one political group. On the other hand, there is also an element of bias from his evidence against the appellant, for according to him, his uncle Imam A.I had opposed Gullan Jam, "Headman and party man" of the appellant in the Provincial Assembly Election of 1962, in which contest Gullan Jam was defeated.

Again in two other elections, the appellant and his relations supported the rival candidates and that till today there is political rivalry. With this background and the defects pointed out above his examination at a later date raises a suspicion that he may well have volunteered to give evidence in the case although his presence is not established at the wardat.

6. The third witness is Ghulam Mohammad Abro. He gave out the reason that he had come to meet Moharam Tapedar in connection with his personal work as he had received a message from him the previous evening in his village to come and see him. After "conveying the message" to Moharam Tapedar he came out and as he reached the Sub-Registrar's office he saw "the deceased Ghulam Kadir standing outside the Court along with Jewatmal, Samo and many others", whom he did not know. At that moment the deceased was fired at and on being hit he put his hand on his chest and said "Siddiq". He then turned back and saw the appellant away along with the gun.

He is, however, candid in saying that he did not see him firing the gun at the deceased. Samo ran after the appellant while he and Jewatmal held him. He is unable to say as to the nature of the work which prompted him to come to Nawabshah from his village which is about 24 miles away.

Moharam was not examined to support his assertion. In the circumstances, it is not possible to accept that he had come in the context of the fact that neither he related the incident to anyone at the wardat, nor was he examined there even though he admitted that Samo had brought the A. S. I., the D. S. P. And the Inspector to the wardat after half an hour. He gave out an absurd reason for not lodging the report that he was "confounded" because of the incident. If at all he was confused, that state of mind could not have lasted beyond 10 or 15 minutes and thereafter there could not be impediment in his way in going and informing some one at the Police Station, which was across the street. He also claims to have come along with the dead body of the deceased to his village but his presence is neither established in the hospital nor was he examined in the village. At the trial he stated for the first time that the deceased cried out the name of the appellant, which he had not stated in his 161 statement, with which he was confronted, and the omission has been duly proved.

This is again an improvement in the case with the object of establishing the identity of the appellant. He was examined for the first time on 3ist August 1958 but why after a delay of 5 days when he was available at the wardat, stands unexplained. This can only be consistent with his absence from the wardat at the time of the incident He cannot also be described as an impartial witness, for he admitted that he had connection with the deceased as he was respectable person of the taluka. His subsequent conduct in having stayed at the wardat, according to him, and in going along with the dead body of the deceased to his village and staying there for the day reflects his interest in the deceased. Therefore, the possibility that he was procured afterwards to volunteer as an eye-witness cannot be excluded.

7. Jewatmal is the last witness in this series. He also stated that he had come to meet the deceased as he had some work with him. He saw both the deceased and the appellant going inside the Court room while Jan Mohammad and Ghulam Mohammad were standing outside. After the hearing was over the deceased came out and while he was talking with Jan Mohammad the appellant came out and fired at the deceased and on being hit, the deceased fell down, upon which he and Jan Mohammad gave him support. The appellant, however, ran towards the north followed by Samo and others. He also claims to have gone along with .The dead body to the hospital and from there to his village. As for the gun he stated that the appellant kept it in the verandah when he went inside the Court. He admitted not having seen the appellant aiming and firing at the deceased, and that he saw the appellant for the first time running away along with his gun after the deceased had fallen down, which admissions have been duly proved. There is a marked difference between these admissions and the version that he gave out at the trial. Again, his evidence is on the same footing as the others. Not having disclosed the nature of the work and the urgency which prompted him to come over to Nawabshah to meet the deceased, raises a doubt as to whether he had at all come to Nawabshah. His version is also not consistent with that of Samo, in that he stated that the gun was not covered or wrapped in any cloth and that it was visible. He also stated that his clothes got blood-stained when he gave support to the deceased but he admitted not having said so in his 161 statement. Neither his clothes were secured, nor were they inspected by the investigating officer. In the circumstances, there is an obvious attempt to show his presence by reference to the presence of blood stains on his clothes, which stands belied from the evidence of the A. S. I. Who stated that he saw no one with blood--stained clothes. He gave no reason as to why he did not accompany Samo when he went to lodge the report. While stating that Muhammad Pinjal, Ins--pector C.I.A., made inquiries from him at the wardat yet lie did not record hi' statement, which feature is again intriguing, for if lie had stated that he had seen the incident there was no reason why, even if Muhammad Pinjal was not investigating the case, he would not have directed him either to the D. S. P. Or the S. H. O. Who were investigating the crime. He is; however, candid in saying that Muhammad Pinjal was along with Santo D. S. P. And the S. H. O.

Yet neither the D, S. P. Nor the S. H. O. Made inquiries from him. We fail to see why he did not himself volunteer to give his statement even if the D. S. P. And the S. H. O. Had not enquired from him. This conduct cannot be explained on the hypothesis that he was at the wardat. His presence also is not established at the hospital although he claims to have gone along with the dead body. He lead also accompanied the dead body to the village but even there he was not examined. It was while at Haberi that a policeman came and informed him that he was wanted for giving his statement at the Police Station and it was then that he went and his statement was recorded on 28th August 1968. The delay in his case also discounts his presence at the wardat. His interest in the deceased is apparent from the fact that he was his partner for several years and the possibility remains that lie was procured afterwards to figure as an eye-witness.

8. Ajaib Hussain is a constable. According to him he had brought the prisoners from jail and had lodged them in the guard room near the Court building. Other constables had also accompanied him. At about 10 a.m. Two Zardaris, who were co-accused with the deceased, ware brought from the guard room to the Court wizen the case was called out and while he stood in the verandah Head Constable Mehdi Khan and Constable Mazhar Hussain accompanied them inside the Court.

He saw the deceased and also the appellant inside the Court. The appellant came out first followed by the deceased and the other co-accused. Since the Mukhtiar kar was not present the head Constable directed him to take the warrants to the office of the Mukhtiar kar and at that moment he saw the appellant firing at the deceased who was standing outside the Court. The deceased upon being hit fell down. Mehdi Khan shouted as to what had happened, upon which he told him that "one person had killed Ghulam Kadir." He thereupon direct--ed him to catch that person whom he pursued. Muhammad Pinjal, Inspector C. I. A., also followed the appellant in a car and on seeing the appellant aiming his gun at Ajaib Hussain, Mohammad Pinjal ordered him to fire in the air, Ajaib Hussain then told the appellant to throw his gun otherwise he would shoot him, whereupon the appellant threw his gun. He was then arrested. From the chamber of the gun one empty cartridge and one live cartridge was secured, for which a mashirnama was prepared.

Further Ajaib Hussain stated that he handed over the empty cartridge fired by him to Zarrar Khan to A. S. I.

9. In the context of the above evidence the defence relied on the testimony of Mr. Ayub Hasan, Joint Civil Judge & First Class Magistrate, Nawab Shah, who stated that from 20th February 1968 and onwards he had recorded the presence of the complainant, who is the appellant and the advocates who attended the hearings in that murder case. He specifically referred to the order recorded on 26th August 1968, in which the presence of the deceased is shown as being present on bail and that of the other co---accused, but not that of the appellant. No P. W. Is shown as being present that day. Accordingly the prosecution version that the appellant went inside the Court after keeping the gun in the verandah become a doubtful on account of his presence not having been recorded by the presiding Officer. Obviously credence cannot be given to the ocular testimony in this respect also.

10. It is the prosecution case that the F. I. R. Was lodged after the appellant was brought to the police station after his arrest. Sumo has given out the names of Jan Muhammad, Ghulam Muhammad and Jewatmal in the F.I.R., but what is surprising is that neither the A.S.I. Nor the D.S.P.

Discovered them at the wardat, nor did they volunteer themselves to give their statements. In this strain how can it be believed that their names could transpire in the F. I. R. If it is accepted that it was recorded at 10-30 a.m. Ex facie, the testimony of Samo shows that he gave discrepant account of many details raising a doubt as to whether he had knowledge of them. Again no other person volunteered to lodge the F. I. R. Which is also a circumstance which cannot be lightly brushed aside.

Additionally, Samo being illiterate and a driver could not have given a statement of the kind attributed to him all by himself, which, of course, is evidence from the fact that the advocates and other persons were present when it was being recorded. All this leads me to conclude along with the defects, pointed out elsewhere in the judgment that the F.I.R. Could not have been recorded at 10-30 a.m. In spite of the fact that it is in the evidence that many other persons were present yet none of them have figured as an eye-witness in the case. The probability is that no one else was forthcoming to give the evidence. Having disbelieved the presence of Samo it is probable that the deceased must have come alone in the car and was killed after the hearing was over. Samo appears to have been brought afterwards to lodge the report on the premise that he had driven the car. At what time the F. I. R. Was recorded cannot be stated firmly but that must be a couple of hours after the incident, which could not be improbable, for only one report was recorded that day in the 154 book and the time could be manipulated without any difficulty.

12. Next is the evidence of Muhammad Pinjal, Inspector C. I. A., who stated that while he was sitting in the office of tae Sub-Registrar he heard a gun-report and "by-standers" saying that one person was running away after "shooting Ghulam Kadir with gun". He, therefore, pursued the appellant in the car of Saindad, with whom he had come to see the Sub-Registrar who belonged to his village and was recently transferred. He also saw Ajaib Hussain, Headconstable Muhammad Hayat, and other persons chasing the appellant. It was near the house of Mr. Amanullah Memon, Advocate, that the appellant aimed his gun at Ajaib Hussain, whom he ordered to fire in the air who did so, whereafter the appellant lowered his gun and he was arrested. A mashirnama of his arrest and securing of the gun, the crime empty and one live cartridge was prepared in the presence of mashirs, Pir Waris Shah and Saindad, and he was brought to the police station along with the seized articles. There is no time mentioned in the mashirnama and what is of singular significance is that no entry was made of the arrest of the appellant along with the incriminating articles in the station diary. It is unbelievable that such particulars would not be recorded in the diary, wherein even the movement of a constable is noted. The recording of such an in--formation in the diary is a must under the rules. Why it was not done, stands unexplained. In fact, Zarrar Khan A. S. I. Made a false statement in the lower Court that he had recorded such information at 10-20 a.m. But at the trial he denied having recorded that information. He was confronted with his admission in the Court be low, to which he replied that he did not remember. Moreover, Zarrar Khan A.S.I. Stated that Muhammad Pinjal told him that the appellant had shot the deceased and was brought after having been apprehended yet he failed to record the F. I. R. On this basis, for which there is no justification. 'The prosecution has also not produced the lock-up register of the police station to establish the time at which he was kept in the lock-up. There is, therefore, no assurance from any independent source as to the capture of the appellant soon after the occurrence to give weight to the evidence of Muhammad Pinjal and Ajaib Hussain about the capture of the appellant.

Muhammad Pinjal claims to have pursued the appellant in Saindad's car yet Saindad was not examined. He also stated that he was sitting in the office of the Sub-Registrar, but the Sub- Registrar was not examined. Again Ajaib Hussain admitted in cross-examination that Muhammad Pinjal pursued the appellant in the car of one Ghulam Muhammad and there were other persons along with him who were not known to him. He also stated that Saindad came afterwards in the ear and "drove away the car fast". Why would he disappear in such a haste, looks intriguing. In this context, there is discrepant version about the owner of the vehicle in which Muhammad Pinjal had pursued the appellant. It is also in the cross-examination of Muhammad Pinjal that he was convicted for contempt of Court and sentenced to pay a fine of Rs. 1,000 which was reduced by the Supreme Court while maintaining the order of the High Court. This was in respect of a false case having been instituted against a judicial officer. With this background it is not possible to accept his ipse dixit when he is not able to explain his presence along with Saindad or the Sub-Registrar.

All that he stated was that Saindad had come to his house and he had come along with him, which appears to me to be suspicious in the context of the reason not having been disclosed. Why the Sub-Registrar would send him a message for meeting him is again without a reason. There is accordingly no assurance of his presence in the office of the Sub-Registrar. Again, the appellant must have been observed running and being chased but no one was examined and produced in the case to lend assurance to this aspect of the prosecution case. Mashir Pir Muhammad Waris has given the time of his arrest as 11 a.m. While the A. S. I. Has stated that it was 10-20 a.m. The prosecution case is that the arrest was before the F. I. R. Was recorded which is timed as 10-30 a.m.

In this context, the arrest at that time cannot be reconciled. The mashir also does not speak about the presence of Ajaib Hussain or Zarrar Khan while Ajaib Khan stated that Zarrar Khan, A. S. I. Was along with Muhammad Pinjal when the mashirnama was prepared. The mashir also does not say as to how the appellant was captured, nor is there any reference to it in the mashirnama. It is in the evidence of the mashir that he has acted in that capacity in "two or four gambling cases". He was also a prosecution witness in a case against Omar under section 13-D of the Arms Act and in proceedings under the Goonda Act against Siddiq Pirzada who had misbe--haved with his daughter. It cannot, therefore, be said that he is a disinterest--ed mashir in the context of the above background and his veracity cannot be accepted on its face value. Additionally the admission of Muhammad Pinjal in the lower Court that throughout the day he did see Saindad or Pir Waris Shah, again casts a doubt as to whether Pir Waris Shah had witnessed the capture and signed the mashirnama at the stated time. Cumulatively, therefore, taking these circumstances into consideration there is no assurance of the capture of the appellant before the recording of the F. I. R. In the manner stated by the witnesses.

13. Zarrar Khan, A.S.I. Stated that he enquired about the eye-witnesses but they bad gone away with the dead body to the village of the deceased and he could not therefore examine them that day.

The names of the witnesses transpire in the F. I. R. Which, according to the prosecution case, was lodged at 10-30 a.m. It is also in the evidence of the prosecution witnesses that they were available at the wardat. Zarrar Khan, A. S. I. Also admitted that the witnesses were present at the wardat but in spite of it what he stated is that he interrogated those found at the wardat but none showed knowledge about the incident. If his earlier statement is accepted then the investigating officer has spoken a lie. He failed to record the statement of either Muhammad Pinjal or Pir Waris Shah. What further appears from his statement is that he was relieved of the investigation at 6 p.m. By the S:P.

Who ordered Pir Bux D.S.P. Headquarters, Nawabshah, to investigate the case. This was not without a reason, for apparently the investigating officers were unable to discover the evidence against the appellant. It was there--after that Jan Muhammad, Ghulam Muhammad and Jewatmal were examined as eye-witnesses. The probability which gains added strength from the above is that the F. I. R. Was also recorded after due deliberation about that time, in which the names of these persons were mentioned at the behest of Samo, the driver of the deceased. The absence of entry in the diary as to the capture of the appellant must be on account of the entries having been made earlier in point of time and, therefore, any entry about his capture at a subsequent time could not have been manipulated. The appellant when examined denied his presence either in the Court or outside the Court or his capture after pursuit. He stated that though he was in Nawabshah town yet being afraid of the deceased he did not attend the Court that day which receives support from the testimony of the F. C. M. He further pleaded that he was arrested from a bazar in Nawabshah town by Zarrar Khan, A.S.I. And kept-in the lock-up along with his licensed gun. He explained the presence of the crime empty in the chamber of his gun saying that while coming from his village he was chased by a dog about a mile away from Nawabshah and he fired a shot at the dog.

Though he has admitted his arrest from "the bazar of Nawabshah" on suspicion not by Muhammad Pinjal but by Zarrar Khan, A. S. I. Yet that circumstances alone in the absence of doubtful evidence cannot be of such a nature to incriminate him. There was enmity between the appellant and the deceased and having regard to the fact that no ocular testimony was available immediately after the occurrence, his arrest on suspicion at a later time cannot be ill-founded. The story of his capture after the chase appears to be highly improbable in the context of the above discussion.

Nothing much turns on the evidence of the ballistic expert as the appellant himself admits that he had fired a shot from his gun at the dog, which explanation cannot be regarded as unreasonable.

14. In the result for the reasons given above, I am of the view that the prosecution has failed to establish beyond doubt the guilt of the appellant, and that he is entitled to the benefit of doubt. In reaching this conclusion I have given my own reasons. While, therefore, respectfully disagreeing with the conclusion reached by my learned brother, Abdul Hayee Kureshi, J. I agree with that of my learned brother, Dorab Patel, J., accept the appeal and acquit the appellant. He should be set at liberty forthwith unless wanted in some other case. The death sentence passed on him is not confirmed and the reference is rejected.

ORDER OF THE COURT K. B. A.