' ABDUL HAYEE KURESHL J.-Appellants Mitho and Alko alias Ali Muhammad were tried by the Additional Sessions Judge, Nawabshah on a charge under section 302/34, P. P. C. For having committed the murder of one Atta Muhammad Unar at a place known as Family Quarters, Market Road, Nawabshah, on 6th August 1970 at 6-30 p.m. They have been convicted of the offence with which they were charged and while Mitho has been sentenced to death Alko has been sentenced to imprisonment for life. They have filed an appeal through Mr. Ghulam Hyder Memon, Advocate and the State at the time of hearing before us was represented by Mr. Murtaza Hussain. The Additional Sessions Judge has also referred the case to the High Court for confirmation of the sentence of death against Mitho.
2. Briefly stated the facts of the prosecution case are that Atta Muhammad Umar, a Zamindar of Nawabshah District had a house within the town of Nawabshah. On 6th August 1970, he had hired a taxi-jeep of Umar Din and came in the said Jeep to his house at about 5-30 p.m. At that time complainant Din Muhammad and Abdul Rehman was at the house of Atta Muhammad and they also sat in the jeep along with Ghulam Hyder and Taj Muhammad aged 4 years, who is a son of deceased Ata Muhammad. The jeep is said to have started from the house of Atta Muhammad and came to the shop of prosecution witness Yaseen on the Market Road and at this shop deceased Atta Muhammad got down from the jeep and had a talk with Yaseen. After having a talk with Yaseen, Atta Muhammad once again came to the jeep and asked Driver Umar Din to precede to Family Quarters, which appears, the name of the locality in Nawabshah. When the jeep proceeded towards the Family Quarters, a tonga came in front of the jeep so that Umar Din had to stop the jeep. It is then said that the present appellants along with one other were standing at a distance of 8-10 paces from the road. Either appellant Alko or the unknown accused gave a signal to appellant Mitho whereupon the latter came near, Atta Muhammad who was still sitting in the jeep and fired at his back from a short range. On account of the injuries that deceased Atta Muhammad received, he fell down on the road.
' The prosecution story then is that appellant Mitho ran in one direction whereas appellant Alko and the unknown accused ran in the other direction. Din Muhammad and Abdul Rehman are said to have chased appellant Mitho and caught him at a distance of about 70 yards. At that time appellant Mitho was in possession of a pistol which contained an empty cartridge and three live cartridges were in his pocket. According to the prosecution the appellant was asked the reason as to why he had murdered Atta Muhammad whereupon the appellant replied that deceased Atta Muhammad had murdered Sain Bux, brother of the appellant and for that reason the appellant had taken. The revenge. The appellant was then brought near the shop of Yaseen and handed over to Yaseen and Abdul Ghani along with the pistol and cartridges. After so handing over the appellant, Din Muhammad removed Atta Muhammad to the hospital for medical aid but before any medical aid could be given to Atta Muhammad, the latter died. Thereafter Din Muhammad proceeded to Nawabshah Town Police Station and lodged a report which was recorded by S. H. O.
Jan Muhammad Khan. The Police Officer proceeded to the scene of occurrence and secured the appellant together with crime weapon in presence of mashirs. The Police Officer also prepared a mashirnama of the scene of occurrence. The Police Officer thereafter visited the hospital and prepared an inquest report. He also examined the jeep in which the deceased was travelling at the time of his death and found that the same bore stains of blood. While the investigations were in progress appellant Alko was arrested on 11th August 1970. Appellant Alko was thereafter produced before the Mukhtiarkar and First Class Magistrate, Nawabshah on 13th August 1970 for the purposes of recording his confession. This confession was recorded on the same day. In the meantime the third accused referred in the earlier part of this judgment as the unknown accused was arrested.
The name of this accused was Ali Akbar and for purposes of this Judgment suffice it to say that Ali Akbar was discharged by the Committal Court.
' The crime weapon together with the empty cartridge was sent by the Investigating Officer to the Ballistic Expert for obtaining an opinion in regard to the crime weapon and the empty cartridge but the prosecution or the Court did not examine him. The learned Additional Sessions Judge in his judgment has held the report of the Ballistic Expert to be a negative report and on that account he did not consider it necessary to examine him.
3. At the trial the prosecution examined Din Muhammad, the first informant and Abdul Rehman and Jeep Driver Umar Din as eye-witnesses. Besides Muhammad Yaseen in whose custody appellant Mitho had been given by Din Muhammad before taking the deceased to hospital was also examined. One Sono was examined by the prosecution on the point of motive and he gave evidence that while serving as a servant of the deceased he had fired at and killed Sain Bux, the brother of appellant Mitho. Mr. Abdullah Ansari, the First Class Magistrate who recorded the confession of appellant Alko was examined to prove the confession and Mr. Pir Bux, a Third Class Magistrate in whose presence the identification parade of appellant Alko was held was also examined. The remaining evidence in that case is of the Investigating Officer and the mashirs who assisted during the investigation. The evidence of Dr. Zahid Hussain, Medical Officer who performed the post-mortem examination on the dead body of the deceased was brought on record under section 509, Cr. P. C.
' Appellant Mitho denied the prosecution case and stated that all the prosecution witnesses were interested and for that reason deposing falsely. He denied that he was present at the scene or that he was arrested and went on to say that he was called from his house and placed under arrest. He also denied that his brother Sain Bux had been murdered by deceased Atta Muhammad or that the latter had got his brother Sain Bux murdered. He further stated that deceased Atta Muhammad was in love with a singing girl and so was the prosecution witness Abdul Rehman and for that reason Abdul Rehman may have murdered Atta Muhammad or got him murdered.
' Appellant Alko denied the entire prosecution case and stated that he did not even know appellant Mitho. He further denied, having made any confession or affixed any thumb-impression on the confession. With regard to identification at the parade, he stated that he had already been shown to the prosecution witnesses at the police station. He alleged enmity with one Muhammad Achar Brohi who is a private servant of one Haji Imam Ali on account of matrimonial dispute. In the Sessions Court, however, appellant Alko had stated that women-folk of his family had been brought at the police station presumably implying thereby that confession was extracted by questionable means although he had stated that he had not made any confession. In any case the confession according to him was neither true nor voluntary. He further stated that he had been kept in wrongful custody for three days before being produced before a Magistrate for making the confession.
4. At the time of hearing, we had seen the miscellaneous record submitted by the Additional Sessions Judge to this Court, wherein we found the opinion of Shahjehan the Ballistic Expert in the miscellaneous papers. To our surprise the report of the Ballistic Expert was not an inconclusive report but definitely a negative report because the same stated that the crime empty had not been fired from the crime weapon. Since we were of the view that this circumstance in regard to the report of the Ballistic Expert was likely to react on the case as a whole, we passed an order under section 375/428, Cr. P. C. And examined Shahjehan, the Ballistic Expert, in this Court. The Ballistic Expert has given definite evidence before us that the crime weapon alleged to have been recovered from the appellant Mitho at the time of his arrest had not been used for firing the crime empty which according to the prosecution evidence was found in the crime weapon at the time of his arrest. This evidence has also been considered by me as evidence in this case.
5. The case against appellant Mitho rests on the evidence of eye-witnesses Din Muhammad, Abdul Rehman and Umar Din, which is sought to be corroborated by the fact of his arrest on the spot and the recovery of the crime weapon and empty cartridges from his possession, and this evidence is also sought to be reinforced by the circumstance that he had a motive to commit this crime. The prosecution has also relied on the retracted confession of appellant Alko in so far as it implicates appellant Mitho and the latter's extra-judicial confession made before the witness. The evidence against appellant Alko consists of his judicial confession recorded by Mr. Abdullah Ansari and identification by the same three witnesses namely, Din Muhammad, Abdul Rehman and Umar Din.
6. I will first deal with the evidence of motive in this case. According to the prosecution the crime was committed by Mitho on account of the enmity owing to the murder of his brother Sain Bux. It is stated in the first information report as well as in the evidence of the witnesses that some time before the date of incident in this case, Mitho's brother Sain Bux had been murdered, while Din Muhammad stated in his evidence that Sain Bux had been murdered by Atta Muhammad. He had in the first information report stated that it was Sono Machhi, a servant of deceased Atta Muhammad who had murdered Sain Bux, the brother of appellant Mitho. In like terms, is the evidence of Abdul Rehman who has of course stated that it was appellant Mitho who confessed before him and the complainant that he had murdered Atta Muhammad because the latter had killed his brother Sain Bux. However, Sono Machhi has been examined by the prosecution and he has stated that he was a servant of Atta Muhammad and that he had murdered. Sain Bux because the latter had fired at him (Atta Muhammad). Sono has even gone on to state that Sain Bux was a decoit and after he killed Sain Bux, he was granted a certificate and some prizes by the Government. Be that as it may, the fact as disclosed is that Sain Bux had been killed by Sono rather than Atta Muhammad. In such circumstances it is hardly probable that appellant Mitho in order to take revenge of the murder of his brother should have, murdered Atta Muhammad. On the other hand, Jan Muhammad, the Investigating Officer during his investigation came to know that the cause of this murder was enmity between deceased Atta Muhammad on the one hand and accused Ali Akbar and Ali Ahmad (Alko) on the other. Ali Ahmad as stated above was discharged by the committing Magistrate. Further , to this, the complicity of Alko in the commission of the crime on account of this motive is also incomprehensible. There is no evidence to show how Alko was connected with appellant Mitho and why he should have engaged in the commission of this crime for the private grievance of Mitho. On the other hand the confession of appellant Alko shows that he had gone to Mitho at the behest of co-accused Ali Akbar without any indication as to how Ali Akbar was interested in Mitho or whether he had any grievance against deceased Atta Muhammad. For this reason I am of the view that the motive alleged is not reliable and in fact I am of the opinion that the real motive has not been established in this case.
7. I would like to take up the case of appellant Alko first and as stated already, the evidence against him consists of his judicial confession corroborated by the evidence of identification. The confession of appellant Alko, states as follows:- "One day prior to the murder of deceased Atta Muhammad, I proceeded from my village Buchheri to Sarhari village by train. My uncle had expired and I had gone for his condolence. Ali Ahmad son of Haji Saleh Unar and Mitho son of Usman Brohi met me there. Ali Ahmad told me that Mitho had to take revenge for his brother so I should accompany him and help him. On the next day I accompanied him and came to Nawabshah by rail-car train. We reached Nawabshah at about 12 noon and went to sit in one hotel. The name of hotel is not known to me but it was near the market.
I was walking but Mitho sat there. At about 6 p.m. Atta Muhammad passed there in the jeep. We both got up from there and followed him. Mitho then fired pistol at him and I ran away. Mitho was caught red-handed. In the evening I went to my village at Buchheri. I gave this fact without any force or pressure and it is quite true. I having nothing more to say."
' On a reading of this confession, the first significant point which strikes me is that the narration is of an exculpatory nature. Appellant Alko has stated that while he came alongwith appellant Mitho and sat at a hotel with him but at the time of incident when Mitho fired his pistol at the deceased he ran away. This would show a patent desire on the part of Alko to exculpate himself and such a narration falls far short, of being a confession. On the other hand appellant Alko has not attributed any overt act to himself and indeed the confession is silent whether he had even a weapon. Even the narration of facts is contradictory to the facts of the prosecution case while all the three eye- witnesses have spoken of three accused persons standing together, appellant Alko in his confession has not stated anything regarding the presence of a third person. He only states about the presence of Mitho and himself. Moreover, the prosecution witnesses have stated that while deceased Atta Muhammad was proceeding in a jeep towards the Family. Quarters, all of a sudden a tonga came in front of the jeep so that the jeep had to stop and immediately thereafter three persons were noticed standing on the road out of whom one was appellant Mitho who fired at Atta Muhammad.... In the confession of Alko the events are stated in a different strain because he states that at 6 p.m. They found deceased Atta Muhammad passing in front of the hotel in a jeep and thereafter both he and Mitho got up and followed him. This story is palpably absurd and false because it is inconceivable, that they would chase a jeep while on foot and still overtook the same.
Appellant Alko has further stated in his confession that they reached a hotel, no better description of which is given and continued to wait there from 12 noon to 6 p.m. As if, they had as of necessity to wait six long in hours in a hotel in expectation of Atta Muhammad passing by the hotel in a jeep in any case if appellant Alko and appellant Mitho had been sitting in a hotel or those six long hours, it should not have been difficult for the Investigating officer to have obtained the evidence of persons from the hotel to the effect of having seen the two appellants in the hotel on the date of the incident. I have also not been impressed by the reason that has been given by appellant in regard to his joining appellant Mitho in the commission of this crime 11 that is said in the confession is that he had undertaken to act and help ethos at the behest of Ali Ahmad. This assertion too has not impressed me ores because Ali Ahmad was discharged in the case.
' While appellant Alko retracted the judicial confession he also alleged in is statement that he had been arrested three days before the confession. The ace Officer Jan Muhammad stated in his evidence that Alko had been arrested by A. S. I. Ali Nawaz on 12th August 1970 and was produced for is confession on the next day viz., 13th August 1970. In cross-examination of the Investigating Officer, a remand report and an application made by the investigating Officer requesting for the recording of the confession of appellant Alko have been brought on record. In both these documents which are xhs. 35 and 36, the writing in the column mentioning the time of the arrest of this appellant Alko has been altered. It appears that the figure of "10" has been altered to "12". This appears to have been done with a view to how that this appellant was arrested on 12th August 1970, when in fact the appellant Alko had been arrested earlier. The Investigating Officer in cross Examination admitted this overwriting in both these documents, but gave explanation about such overwriting. It would seem that appellant low had been arrested earlier than 12th August 1970, and these circumstances lead)/ indicate wrongful confinement of this appellant immediately preceding the recording of the confession.
' While dealing with the Judicial Confession I cannot overlook an admits-- on made by Mr. Abdullah Ansari to the effect that after recording the confession he once again sent for the police force from the police station order to send the appellant to the judicial lock-up. This clearly shows that van after recording the confession appellant Alco had been handed over the police. This circumstance also concerns the admissibility of the judicial confession.
' For all these aforesaid reasons I hold the confession to be inadmissible' cause the same does not appear to be voluntary or true and there are reasons to hold that the appellant Alko had been kept in wrongful custody .y the police.
7-A. The next piece of evidence against the appellant Alko is identification prosecution witness Din Muhammad, Abdul Rehman and Umar Din, he identification parade was held on 15th August 1970, in the presence of r. Pir Bux a Third Class Magistrate. No doubt all the three witnesses claim to have identified appellant Alko in the line-up but 1 am of the view Eat it is not safe to rely on this identification parade. Firstly, no description of the appellant has been given in the first information report and secondly at the witnesses if at all they had seen the accused must have had at best a very momentary glimpse of the assailants and that too under conditions of extreme terror.
Moreover, it is admitted case that appellant Alko did not come near the jeep in which the deceased was sitting and therefore, it is but natural that the attention of the witnesses should be attracted only to the alleged actual assailant rather than to appellant Alko. The effect of these circumstances is again heightened by the fact of illegal confinement of the appellant before his production for recording confession. All these circumstances have put me on guard and I am of the view that the evidence of identification is not reliable in this case. The appellant has stated that he had already been shown to the witnesses by the police.
' I may while dealing with the evidence of identification also refer to a statement made by P. W.
Abdul Rehman in cross-examination had stated that he had given a description of appellant Alko in his police statement. That description according to Abdul Rehman was in the words that "he was wearing a blue shirt, white turban and white shaiwar and was of short size, and of a brown colour".
However, the Investigating Officer has clearly stated that this witness had not given the description of appellant Alko. This would show a patent desire on the part of this witness to improve the case at the stage of trial.
' I am therefore, of the view that the evidence of identification of appellant Alko is not reliable.
8. Since the confession of the appellant Alko and the evidence of identification has not been relied on by me and further that the evident of motive, if he had any, is also not reliable and is furnished only by hi confession which I have held inadmissible, also cannot be taken into consideration against him. In the result, the conviction of appellant Alko is hereby set aside and he is acquitted.
9. Having dealt with the case of appellant Alko, I proceed to deal with the case of appellant Mitho.
As stated in the foregoing paragraphs the main piece of evidence against appellant Mitho is provided by the eye-witnesses, namely, Din Muhammad, Abdul Rehman and Umar Din; Ghulam Hyder and Taj Muhammad not having been examined. These eye-witnesses also deposed with regard to extra-judicial confession made by appellant Mitho at the time of his arrest. This evidence is sought to be corroborated by the circumstance of -immediate apprehension of the appellant and recovery of the crime weapon and the spent cartridge lying in it. The prosecution has also led evidence as to motive, and I have already dealt with that piece of evidence.
10. Coming to the evidence of these eye-witnesses and considering it along with the circumstance of immediate apprehension of the appellant, it has necessarily to be looked at in the light of attending circumstances. With regard to the recovery of the pistol and the spent cartridges I have already stated that the weapon had been sent to the Ballistic Expert who had given a report that the empty cartridge had not been fired from the pistol in question. The Ballistic Expert was not examined in the trial Court. The learned Judge while dealing with that aspect of the case has stated as follows:- "No doubt the pistol and empty cartridge were sent to the Ballistic Expert who has sent negative report, but I find that conduct of the Ballistic Expert is not beyond doubt. The pistol and the crime empty was sent to him but in spite of the lapse of more than 12 months he did not send his report and even after the case proceeded before this Court, he was reluctant to send his report. It was only when the matter was referred to the Home Secretary, the learned expert sent the negative report for the reasons best known to him. All the three alleged eye-witnesses are unanimous that the accused was caught red-handed on the spot immediately after the incident and the pistol having cartridge in its chamber was also secured from him immediately after the incident. In spite of that the report sent by the expert is in the negative."
' What is stated in the judgment indicates that the learned Judge assumed that this pistol had been used for the purpose of the commission of the offence and that the report of the Ballistic expert was false and motivated. To say the least this was an absolutely wrong approach in this case more so because the expert was not examined. Before us the Ballistic Expert clearly stated that the pistol which is alleged to have been recovered from the appellant had been used for firing the empty cartridge. He was cross-examined by Mr. Murtaza Hussain but nothing substantial has emerged in the cross-examination as may cast a doubt on his evidence. In fact cross-examination appears to be mainly attracted to show that the crime weapon and the crime empty had been sent to the Ballistic Expert after a delay of about six months and the opinion given after about a year. It appears to be that Mr. Murtaza Hussain was attempting to discredit this witness mainly on the ground of delay in the examination of the crime weapon but even in that regard the witness has given an explanation and he has stated that his predecessor had absented himself from duty for a long time after keeping the pistol in question along with the other weapons in the locked-up cupboard and it was only after he made a request to the District Magistrate for breaking open the lock that this crime weapon alongwith other weapons was found from the cupboard. Placed in that situation Mr. Murtaza Hussain attempted to persuade us to disregard this piece of evidence completely. The learned State Counsel relied on the case of Muhammad Shaafi and another v. The State (1). In that case the weapon and the crime empty had been sent to the expert after a lapse of time and the learned Judges while allowing that appeal came to the conclusion that delay in sending the weapon to the expert provided a chance of concocting the empties. The position in the present case is entirely different. The eye-witnesses have stated that appellant Mitho was arrested immediately and on the spot and at that time he was in possession of the crime weapon and the crime empty. It is thereafter stated that Mitho was detained in custody of prosecution witness Yaseen till such time that police came and arrested him and secured the weapon. It is further in the evidence of the prosecution that the weapon was sealed on the spot. There is not even an iota of evidence or even a suggestion in the entire prosecution evidence that eye-witnesses or Yaseen or the Police Officer have substituted the weapon or the cartridge. All this evidence with regard to the recovery of the crime weapon and empty is from the side of the prosecution. Under these circumstances it would be idle to eliminate from consideration the fact that this weapon alleged to have been recovered from appellant Mitho is a circumstance of insignificance and should be overlooked. To my mind that would defeat the ends of justice. I would even venture to say that the learned Public Prosecutor clearly failed in his duty in withholding this piece of evidence. In any case if he thought that this piece of evidence weakened the case he should at least have kept the Ballistic Expert available for examination by the accused if the latter chose to examine him. It is needless to stress that the function of the Prosecutor is to hold the scales and even provide full opportunity to the accused to establish his case and for that purpose the Expert had been examined whether the evidence was in support of the prosecution or the accused. {{FOOT NOTE}}
(1) PLD 1968 Lah. 869 {{FOOT NOTE}} ' The fact that the pistol does not match the crime empty is a circumstance of very great significance and reacts against the entire ocular evidence in the case. This circumstance gains added significance because the prosecution alleges that three persons were found together at the time of commission of this offence. In that case the probability of someone else having fired also cannot be overlooked because if Mitho had fired from that pistol, for the purposes of murdering the deceased, there was no chance or opportunity for him to have substituted the weapon or crime empty.
10. Even otherwise I have not been impressed by the evidence of these eye-witnesses whose evidence according to me has not only been looked at with suspicion but has to be deeply scrutinized. Initially it is stated that four adults, viz. Umar Din, Jeep Driver, Din Muhammad complainant. Atta Muhammad deceased and one Ghulam Hyder were occupying the front seat of the jeep and together with them Taj Muhammad a son of Atta Muhammad was also sitting. It appears curious as to why four adults and a young boy should occupy a single seat of the jeep and huddle themselves when the back seat is available. I also cannot overlook that if all these four persons and the young boy had been sitting on the front seat, some of them should have some blood on their clothes, but no witness has stated that any blood fell on his clothes. The other circumstances in regard to the appellant Mitho having been chased by Din Muhammad and Abdul Rehman also is equally unimpressive. The evidence discloses that Mitho had a pistol with him at the time of incident and the witnesses were unarmed. Under these circumstances it is highly improbable that the witnesses should have chased Mitho and the latter should not even have attempted to use his pistol for the purposes of avoiding the arrest or scaring away the witnesses. It is again-in the prosecution case that three live cartridges were also available with him. What is more that 30-40 persons are said to have followed Mitho in the chase according to the evidence of the complainant but none of them has been examined. In fact the incident is said to have taken place on Market Road where there are several shops and that being so it should not have been difficult for the prosecution to have examined some persons besides the witnesses-who have given evidence. Lastly the complainant Din Muhammad has'. Stated in his evidence that after the appellant was caught, the latter made are extra-judicial confession by stating that he has murdered Atta Muhammad' because the latter had murdered Sain Bux, the brother of Mitho. Firstly,.
Sain Bux had not been murdered by Atta Muhammad and with that aspect of the case I have already dealt with in earlier part of this judgment, and secondly this fact of extra-judicial confession finds no mention in the first information report. Not only that but Muhammad Yaseen had not stated in his Police Statement and the omission has been proved; that at the time Mitho was handed over to him by complainant Din Muhammad and Abdul Rahman he was informed that the appellant had caused the death of Atta Muhammad. All the eye-witnesses also stated that one out of the two companions of the appellant gave a signal to the appellant indicating the arrival of Atta Muhammad and in my view that is also highly improbable. Because it is the case of the prosecution that the appellant Mitho knew the deceased as a murderer of his brother Sain Bux and that being so there was-hardly any necessity for any other person to give signal.
11. Coming to the evidence of complainant Din Muhammad and Abdul Rahman I find that their presence at the scene of occurrence and earlier at the of Atta Muhammad is doubtful. Din Muhammad states that he had gone from his village to Nawabshah for his private work. He goes on to state that there are shops and houses of his caste fellows at Nawabshah and he sometime used to go and have rest at their shops or houses. He has given no particular reason for going to the house of Atta Muhammad on that day and it also emerges from his evidence that Atta Muhammad was not present in his house until about a few minutes before the latter met his death.
With regard to the presence of Abdul Rahman, the prosecution evidence is that Abdul Rehman owed 45 rupees to Din Muhammad which he had borrowed either 2/3 days or 20/30 days before the incident and in order to recover this amount Din Muhammad had sent his brother to find out Abdul Rahman in the town of Nawabshah when Abdul Rahman is a neighbour of Din Muhammad.
Surely because Abdul Rahman was a neighbour of Din Muhammad it would have been more convenient for Din Muhammad to locate him at his house rather than to send his brother to chase.
Abdul Rahman in the town of Nawabshah. But what is even more curious is that while. Din Muhammad had sent his brother to find out Abdul Rahman at 12 Noon or 1 p.m. The latter came up only at 6 p.m. What is more that even when Abdul Rahman came to Din Muhammad the latter made no demand of 45 rupees. In any case Din Muhammad had not stated so in his evidence. On the other hand Abdul Rahman had been confronted with his police statement wherein he had stated that after finishing his work in the town of Nawabshah he was returning home and met Din Muhammad in front of the house of deceased Atta Muhammad. This would show that Abdul Rahman met Din Muhammad only by coincidence if not by chance. Even in the statement under section 164, Cr. P. C. Abdul Rahman had not stated about his having received a message from Din Muhammad to come to the latter for the repayment of the loan. It appears that at the stage of trial both the prosecution witnesses Din Muhammad and Abdul Rahman have attempted to find out some possible reason for their meeting at the house of Atta Muhammad. As otherwise in the first information report, statement under section 164, Cr. P. C. Of Abdul Rahman and also the police statement of Abdul Rehman, this story of Din Muhammad having called Abdul Rahman for recovering Rs, 45 is completely absent.
12. On a reading of the evidence of Din Muhammad I have found that in the Court of the Committing Magistrate he had not stated that appellant Mitho had fired at Atta Muhammad. When confronted he initially stated that he did not remember whether he had so stated in the Court of the Committing Magistrate and for that reason the trial Judge has made a note in the deposition of Din Muhammad to the following effect : "Note.-The witness has stated in his deposition in the lower Court that there was a fire shot striking the deceased Atta Muhammad Umar, there hitting him on his back; Atta Muhammad deceased failed (fell) down. I saw three persons running away towards West."
' However, in the very next sentence Din Muhammad admitted that he had not stated before the Committing Magistrate that he had seen appellant Mitho firing the pistol at Atta Muhammad deceased but he however, qualified his statement by giving a reason for such omission, the reason being that no such question was put to him in the lower Court.
'Coming again to the evidence of Abdul Rahman I may initially state that he was a co-accused with deceased Atta Muhammad in a murder case. This would at least show that he knew deceased Atta Muhammad very well. This witness apart from the suspicious manner in which he came to meet Din Muhammad has stated in his evidence that immediately after the murder he went away to his village. This conduct was must extraordinary and he has given no reason whatsoever for his departure from Nawabshah in such haste.. The normal behaviour of a person who has seen another being murdered would be to wait at least for some time so as to disclose the circumstance of the transaction to the police and moreso when the deceased would be intimately known to the witness. He did not even wait till such time that the deceased was taken to the hospital for immediate medical aid. With regard to chasing of appellant Mitho this witness went on to state that while so chasing the appellant, no cries were raised. This witness was examined by the police on the next day as he was not available on that evening.
'Coming to the evidence of Umar Din I find that his statement was recorded by the police 8-10 days after the incident although the Police Officer says otherwise. In his cross-examination it has been stated by him that he had not stated before the police about the appellant having been caught by Din Muhammad and Abdul Rahman. Even in his statement under section 164, Cr. P. C. He has not stated about having seen appellant Mitho being arrested. It seems that both in the police statement and the pre-trial statement before the Magistrate all that was stated by this witness was that Din Muhammad and Abdul Rahman had come and informed him that they had handed over the accused (appellant) to Yaseen and Abdul Gani. What is more that in his deposition before the Committing Court he had stated that he could not say whether the pistol or cartridges were secured from the appellant. At the trial in the Sessions Court he made improvement in his statement by stating that complainant Din Muhammad and Abdul Rahman had brought the appellant with a pistol near the place of occurrence and handed over the appellant to Yaseen and Abdul Ghani. He was thoroughly contracted by his pretrial statement wherein he had not stated that he had seen the appellant in custody of Din Muhammad and Abdul Rahman. In the trial Court this witness again stated that appellant Mitho was the same person who was secured at the spot when in his earlier statements he has not stated that he had seen Mitho in custody of Din Muhammad and Abdul Rahman.
' I may also at this stage state that the extra-judicial confession alleged to have been made by appellant Mitho in regard to having murdered Atta Muhammad owing to the previous murder of his brother Sain Bux, also finds no mention in the pre-trial statement of Abdul Rahman and Umar Din.
' The next witness whose evidence requires consideration is Yaseen. This witness according to the prosecution witnesses was a lessee of Atta Muhammad. It is then said that while deceased Atta Muhammad alongwith witnesses came in the jeep they stopped at the witness's shop because the deceased had some work which according to the witness Yaseen was that deceased Atta Muhammad wanted some money. Yaseen in his evidence has stated that immediately after the jeep left his shop he heard a gun report. According to the witness the gun had been fired from a distance 5-6 shops away from his shop which would mean about 20 yards. He went on to state that he went up in the direction from where he had heard the gun report and found Abdul Ghani, who has of course not been examined, standing at the shop. At that time the witness found Abdul Rahman and Din Muhammad bringing the appellant; and a pistol was in the hands of Din Muhammad at that time. Yaseen stated that he made enquiries from Din Muhammad and the latter told him that Atta Muhammad had been murdered by the person who was in their custody, and thereafter, the said person was detained by them. However, he was confronted with his police statement and although he stated that he had been informed by Din Muhammad that appellant had murdered Atta Muhammad, the Sub-Inspector of Police stated that no such statement was made by Yaseen before him. The circumstance with regard to the Yaseen holding the custody of appellant Mitho before the arrival of the police evokes curiosity. However, when the Police Officer visited the scene at about 7-30 p.m. Viz. About an hour after the incident, he found the appellant at the shop of one Nazeer Ahmad. This Nazeer Ahmad has of course not been examined. The same mashirnama again states that it was Muhammad Yaseen who declared before the police that he had recovered the pistol and the empty cartridge from the appellant, when in fact the prosecution case is that the same were recovered by Din Muhammad and Abdul Rahman. This witness Yaseen has also tried to make improvements in his evidence by stating that he had enquired from appellant Mitho as to the cause of the murder and the latter had replied that he had taken the revenge on account of earlier murder of his brother at the hands of deceased Atta Muhammad.
Such statement was not made by Yaseen before the Police.
13. On a reading of the evidence I am also left with a feeling that the first information report is belated. According to the evidence of Din Muhammad, deceased Atta Muhammad had come in a jeep at about 5-30 p.m. And both eye-witnesses Din Muhammad and Abdul Rahman stated that Atta Muhammad came in a jeep and they started from the house of Atta Muhammad. This would mean that the deceased alongwith the witnesses left the house of the deceased at about 5-30 p.m. Thereafter, the deceased only went to the shop of Yaseen where he had a brief talk and during that time the witnesses were still sitting in the jeep. On the other hand Abdul Rahman met Din Muhammad outside the house of Atta Muhammad when the latter came and all of them started for the village. According to Din Muhammad, Abdul Rahman had come to him at 4-30 p.m. The time then of the departure of Din Muhammad and Abdul Rahman from the house of Atta Muhammad would be 4-30 p.m. But even if we believe, which in my opinion is rather difficult to believe that Abdul Rahman and Din Muhammad would be standing outside the house of Atta Muhammad till 5-30 p.m. When Atta Muhammad came, the incident must have taken place within 5-10 minutes after their departure from the house of Atta Muhammad. The first information report has been lodged at 6-45 p.m. When the police station was only 3 furlongs away and a jeep was available. Umar Din the Jeep Driver has again given the time at 7-00 or 7-30 or 8-00 p.m. When Din Muhammad went to lodge the report. He had given different times for the reasons best known to him but as I have stated Atta Muhammad must have left from his house if the evidence of the eye- witnesses is to be believed at about 4-30 p.m. And must have met his death at about 4-45 p.m.
This would show that even the first information report is belated.
' On a careful consideration of the evidence of the three eye-witnesses namely, Din Muhammad, Abdul Rahman and Umar Din coupled with the evidence of Yaseen in whose custody the appellant was handed over before the report, I find that the evidence is suspicious. This evidence is also subject to reaction by the circumstance that the crime empty recovered from the appellant on the spot had not been fired from the pistol which was simultaneously recovered.
14. In the result the conviction and sentence of appellant Mitho is set aside and he is also acquitted.
The reference for confirmation of death sentence is rejected. ##TE ##
15. The appeal of both the appellants is accepted. They shall be released forthwith if not required in any other case.
' TUFAIL ALI A. REHMAN, C. J.-I agree.