MUHAMMAD AFZAL CHEEMA, J.-Vide his judgment dated the 20th of May 1968, the Additional Sessions Judge, Lahore, at Sahiwal convicted Muhammad-Iqbal alias Bala a shop-keeper of Okara under section 302, P. P. C. For the murder of Muhammad Sharif deceased and sentenced him to death. He was also con--victed under section 13 of the Arms Ordinance, 1965 with an award of one year rigorous imprisonment to be suffered in the event of non-confirmation of sentence of death.
Criminal Appeals Nos. 421 and 422 of 1968, have been filed by him respectively, against his convictions and sentences and we have also before us his case under section 374; Cr. P. C. For the confirmation of sentence of death. This judgment will dispose of the appeals, as well as the murder reference.
2. The relevant facts of the case are that on 23rd of January 1966, which happened to be Eid day, at about 3-15 p. m., Muhammad Sharif deceased accompanied by his relation Muhammad Nawaz complainant, a resident of Gojra, proceeded from his house in Chamra Mandi, Okara, in order to see off the latter. They were joined by Muhammad Yousaf and Jehangir P.Ws. As they reached in front of Naz Cinema, the appellant suddenly appeared in front of them and challenged Muhammad Sharif deceased that he would not be spared. So saying, he took out a revolver from the left fold of his loin cloth and fixed a shot at Muhammad Sharif .Who was hit on the chest: In the meantime. Hanif P. W. 11, another resident of Chamra Mandi arrived there. The appellant fired four more shots and ran towards the railway station. Many people gathered at the spot. The deceased was removed by the aforesaid persons to the hospital in a state of consciousness and was admitted. At about 4-00 p. m. a telephonic message was received by the Moharrir Head Constable from doctor Mumtaz Ahmad P. W. 2 A. M. O. Out--door Dispensary, Okara, intimating about the admission of Muhammad Sharif, the injured person. This report was entered at serial No. 7 of the daily diary and a copy of the same was sent to A. S. I. Gulzar Hussain Incharge Police Post No. 1 to whose jurisdiction the matter pertained. The copy of the relevant report is Exh., D. E. On the record.
Subsequently, to the same effect, a letter Exh. D. G. Was addressed by the doctor, Civil Hotpital, Okara, to the S. H. O., Police Station, Okara Gulzar Hussain A. S. I., Police Post No. 1, Okara, reached the hospital and inquired from the doctor vide application Exh. P. L. As to the , fitness of the injured person to make a statement. The query was answered by the doctor in the negative ride report Exh.
P.L/1. Gulzar Hussain A. S. I., then recorded the statement of Muhammad Nawaz complainant Exh. P.
E. Who was present in the hospital. Exh. P. E. Explains the motive mentioned therein namely that 1i years prior to the occurrence, one Riaz Muhammad, a relative of the deceased had been beaten by the appellant and some others. The appellant and the other accused were challaned in that case.
It was in connection with that earlier fight that some time before the occurrence the deceased and the appellant, had exchanged hot words and had abused each other when the appellant had threatened the deceased with dire consequences. The statement of Muhammad Nawaz Exh. P. E.
Was treated as F. I. R. In the case.
3. Doctor Mumtaz Ahmad, medically examined Muhammad Sharif deceased while he was still alive and vide his report Exh. P. D. Found the following injury on his person :- A wound of entry on the left side of chest below the left nipple, margins of entry charred (blackened) --" x --" shirt, waskat, sweater, corresponding to injury having hole, blackening on the shirt, wasket, sweater was present.
The following note was also added by the doctor.
A white with black lined karaline shirt P. 3 Latha Jacket (wasket) P.4 and sweater multi-coloured P. 5 (brown light blue, light yellow), handed over to police, bearing my signatures and date. Blackening more marked as shirt, less on wasket, and faintly present.
The clothes viz. Karaline shirt P. 3, waist-coat P. 4 and sweater P. 5 belonging to the deceased were taken into possession by Gulzar Hussain A. S. I. P. W. 15, vide memo, Exh. P. F. He also recorded the statements of the eye-witnesses. It appears that on the following day, Muhammad Sharif was removed to Mayo Hospital, Lahore, where he was admitted late in the night, was operated upon and expired soon thereafter. On the following morning i.e. 25th January 1966, Gulzar Hussain A. S. I.
Having received information regarding the expiry of Muhammad Sharif deceased reached Lahore and prepared his inquest report Exh. P. M. And injury statement Exh. P. N. He sent the dead body for post-- mortem examination under the escort of Muhammad Sadiq constable which was performed by Doctor Muhammad Zahir Khan, on 25th January 1966 at 1.00 p. m. Who vide his report Exh. P. H. Found it to be a dead body of a young adult with the following injury on his person :- "A gun shot entrance wound round in shape about --" x --" on the front of left side of chest, just below the left nipple, about 3" to the left side of middle line. The margins were inverted and eechymosed. The skin around the wound was slightly blackened."
There was no exist wound. On disection the left side of therax, left pleura, left lung were reputured, and the sixth left rib was fractured. Likewise, the peritoneum, the diaphram and the stomach were found ruptured. In the opinion of the doctor, the cause of death was cardiorespiratory failure due to shock and haemorrhage on account of injury No.1, caused by a fire-arm. This injury was sufficient to cause death, in the ordinary course of nature. .Probable time between injury and death was about. 35 hours and between death and post-mortem examination was 18 hours. The doctor had also extracted a bullet P. 6 whose identity was latter disputed in the lower Court, but admitted at the trial which was taken into possession by Gulzar Hussain A. S. I. Vide memo. Exh.. P: B. Report Exh.
P. J. Was relating to the death of Muhammad Sharif and purporting to be in the hand of Dr. Abdus Samad who did not enter in the witness box, was handed over to Gulzar Hussain A. S. h. Which read as follows :--- "Patient's name.Muhammad Sharif Age :-22 years.
Diagnosis :-Bullet wound chest (L).
Admitted :-24-1-1966 Exh-. 24-1-1966 Registered No.11-45 p. m.
Bed No. 20.11-50 p. m.
Expired due to cardiorespiratory failure due to Surgical shock due to Bullet wound Chest (L).
ABDUS SAMAD M/S."
The, role next played by Gulzar Hussain, A. S. I. In regard to the investigation, however was that on receipt of information he raided the house of one Tai Din alias Taja living in Eid Gah locality Okara, in the presence of Agha Khan P. W. 13 and Noor Muhammad P. W. 14 and arrested the appellant from inside a room. Revolver P. 1 was recovered from the appellant along with empties P. 2/1-5 and one live cartridge P. 2/6,which were take into possession vide memo. Exh. P. C. A sketch of the revolver Exh. P. C./ I was prepared, and the revolver and the empties were sealed into separate parcels. He got prepared site plan Exh. P. A./1 on 14th February 1966. He also prepared site-plan Exh.
P. R. Of place of recovery. It appears that on 26th January 1966, the appellant while - in police custody, submitted an application Exh. P. G./1 to the S. D. M., Okara, through Ch. Ikram-ul-Haq pleader expressing apprehension of torture at the hands of the police and praying for being medically examined. The prayer was allowed by the S. D. M. On the same day vide endorsement on the application and the S. H. O., Okara, was directed to get the appellant medically examined. It would also be relevant to mention in this context to report Exh. D. E. Of daily diary of Okara Police Station which refer inter alia to the arrest of the appellant. The relevant ' portion of that ' report reads as follows :- "Case No. 12/66, under section 302, P. P. C. Muhammad Iqbal alias Bala son of Din Muhammad, caste Arain, accused resident of Okara in the aforesaid case arrested, was brought and after his personal search, being recovered nothing, was put in the judicial lock-up."
4. It was not till 14th March 1966 that three sealed parcels, one containing revolver P. 1, the other containing five empties P. 1 to P. 5 and the third containing a crime bullet which presum--ably was 'extracted from the body of the deceased, were sent to the Forensic Science Laboratory, Lahore.
Vide report Exh. P. Q. 1; the crime bullet C. 3 and C. 4 were found to have been fired from the revolver P. 1: No opinion could be expressed regarding the crime empties C. 1, C. 2 and C.
5. Likewise nothing could be opined regarding the crime bullet.
5. The appellant pleaded not guilty to the charge, denied allegations of recovery of his pistol and explained his arrest as follows :- "When I learned on 25th January 1966 that a false case had been registered against me, I appeared before the police, who kept me in illegal custody. I made an application Exh. P. G/1 to the S. D. M. Okara for my production for remand and for medical examination through my counsel. As soon as the S. I. Who was in Court, came to know about this application he foisted a false recovery upon me with the help of Ghulam Muhammad maternal uncle of the deceased and at 5.00 p.m. On 26th January I was sent in the police lock up."
To a question as to why this case was brought against him the appellant replied as follows:- "I have been falsely implicated on account of enmity with Muhammad Nawaz and Abdur Razzaq who acted behind the scene. Jahangir P. W. Is a servant of Abdur Razzaq since partition and is still working with him. He has no independent business. Hanif P. W. And Muhammad Nawaz P. W. Are near relations of the deceased. Muhammad Nawaz P. W. Belongs to Gojra and all the P. Ws.
Alongwith Abdur Razzaq were running a dramatic club under the name of Shahid Dramatic Club Okara Muhammad Yousuf P.-W. Has an alias 'Shahid' and in order to avoid the disclosure they have intentionally given him up. Copy of a ticket has been produced in Court. 'The papers marked X, Y and tin the connected file under section 13 of the Arms Ordinance and the order sheet of the year 1965 in regard to this arms case attached on that file, may also be read in my defence."
He produced no witness in defence arid relied upon the documents referred to above.
6. The learned counsel for the appellant raised the following contentions before us :-
(i) That in view of the undeniable position that the hurt case which allegdly furnished the motive, had been compromised there was no motive in existence for the appellant to assault on the deceased.
(ii) That the occurrence took place at 3-30 p.m. At a distance of four furlongs from the Police Station and yet the ..Report was not lodged till 5 p. m.
(iii) That the statement of Muhammad Nawaz Exh. P. E. Cannot be legitimately taken as the F. I. R. In the case of the telephonic message received by the Moharrir Head Constable of Police Station Okara, from Dr. Mumtaz Ahmad, at 4 p. m. On the 23rd of January 1966 and the letter Exh. D. G. Of even date address by the doctor to S. H. O. Okara.
(iv) That although the occurrence took place in. Front of Naz Cinema which 'at the relevant time was admittedly a very frequented place yet none of the eye-witnesses belongs to that place, and on the contrary, they all belong to Chamra Mandi locality of which ,the deceased was himself the resident.
(v) That there was not a single disinterested witness in the case, Muhammad Nawaz P. W. 9, and Hamid P. W.' I 1 being admittedly related to the deceased, and Jahangir P. W. 12 who denied the suggestion of relationship was admittedly also a resident of Chamra Mandi.
(vi) That the eye-witness account given by the P. Ws. Was not in accord with the medical evidence which clearly indicated that the shot had been fired from almost a point blank range.
(vii) That even otherwise, the death of the deceased did not follow as a direct consequence of the pistol shot but the inter--vening factor of surgical operation had also contributed to it As clearly mentioned in Exh. P. J.
(viii) That the recovery of pistol P. 1 along with five empties and one live cartridge attributed to the appellant was a total fabrication and a forgery pure and simple.
(ix) That no sanctity could be attached to the investigation of this case which was conducted in flagrant violation of the provisions contained in section 172, Cr. P. C.
7. As regards the first contention relating to motive, the position taken up by the appellant was that the complainant had filed an application seeking permission of the S. D. M., Okara for effecting a compromise in that case and further that Riaz who had appeared as an eye-witness in that case did not implicate the appellant, here is nothing on the record to falsify the position taken up by the appellant and as such the alleged motive does not stand fully established: However, it is well- settled that in cases where direct ocular evidence is available the absence or the weakness of motive would not be very material.
8. Coming to the next contention relating to delay, it cannot-- be denied that the occurrence took place at 3-30 p.m. At a distance of half a mile from Police Station' Okara where the report Exh. P. E./1 was lodged at 5 p. m. In the circumstances narrated earlier. It cannot be justifiably contended that the delay has remained unexplained. Obviously in a case. Where a person is seriously injured, the first anxiety, of the people around him would be to remove him to the hospital and try to save his life rather than to rushing to the police station. It was on receipt of a message from the doctor that A. S. I. Gulzar Hussain repaired to the hospital and recorded, the statement of Muhammad Nawaz complainant on the basis of which the case was formely registered under section 307, P. P. C.
Again, it 'is not delay per se which could invariably be construed against the prosecution unless there are other doubtful circumstances suggesting elaboration unless embellishment. .
9. As regards the next contention as to whether in view of the telephonic message sent by Dr. Mumtaz Ahmad on the basis of which report Exh. D. E. Was recorded in the Daily Diary of the Police Station, supplemented by letter Exh. D. G. To the same effect, the statement of Muhammad Nawaz complainant Exh. P. E. May be legitimately taken as the F. I. R. In the case, the learned Additional Advocate-General contended that neither letter Exh. D. G. Nor report, Exh. D. E. Based on the telephonic message fulfilled the requirements of an F. I. R. As envisaged by the provisions contained in section 154, Cr. P. C. It was argued that since the earlier statement fulfilling these conditions was one made by Muhammad Nawaz Exh. P. E. This alone could be treated as the first F.
I. R. Reliance was placed .On Muhammad Afzal v. The State (PLD 1960 Lah. 97) and Muhammad Siddik v. The Crown (PLD 1954 FC 112). Having considered the two authorities, we are clearly of the view that they furnish a complete answer to the objection raised by the learned counsel for the appellant and as such 'statement Exh. P. E. Was rightly treated as the F.I.R.
10. Coming now to the next contention it may be straight--away conceded that the occurrence had taken place in broad day--light in front of a cinema on the day of Eid when obviously a large number of people would have been present to see it. However, keeping in view the too well known and deplorable lack of public spiritedness in our society, we would not be surprised that only the persons who had accompanied the deceased at the relevant time were prepared to come forward and state the truth. Even otherwise, it stands fully established that Hanif P. W. 11 whose arrival is mentioned in the F. I. R. Was running a small hotel in front of the cinema. This, in fact, was the opening sentence of the statement of this witness at the trial. Notwith--standing, therefore, his admitted relationship with the deceased, there is hardly any reason either to doubt his presence at the relevant time or to disbelieve his testimony. In a single accused case of broad day-light occurrence, like the instant one, where there is no question of either mistaken identity or otherwise false substitution, and where the appellant was named in the F. I. R. Lodged without delay as the solitary assailant, we see no reason to disbelieve the testimony of the three eye-witnesses, namely, Muhammad Nawaz complainant P.W.9. Hanif P. W. 11 and Jehangir P. W.
12. Muhammad Nawaz had given a cogent explanation of his being present at the relevant time, namely, that the deceased had gone to see him off at the bus-stand. The mere fact. Therefore, that these witnesses were residents of Chamra Mandi, a locality where the deceased also resided, or they were related to him would not justify the rejection of their testimony in the absence of any motive to falsely implicate the appellant in a case of murder. It was, in our view, rightly accepted by the learned trial Judge.
11. Coming to the next contention, we have not b; en able to find any semblance of a conflict between the ocular evidence and the medical evidence. No doubt the blackening clearly indicated, as opined by the doctor, that the shot was fired at the deceased from a distance within four feet, but this cannot be said as being in conflict with the ocular evidence. According to Muhammad Nawaz complainant, the distance between the appellant and the deceased would be five to six feet and normally when a person stretches out his hand to fire a pistol shot this would reduce the distance by another two feet so as to bring it within the blackening range. It would thus be wrong to say that there is any conflict in the medical and the ocular evidence in this regard.
12. As regards the next contention that death had not followed as a direct consequence of the injury, but a surgical operation had also intervened as a contributory circumstance, as clearly mentioned in Exh. P. J., Murad v. The State (PLD 1957 Lah. 332) furnishes a complete answer. In cases of this nature a surgical operation cannot be construed as a mitigating circumstance in favour of the appellant who, nonetheless, would be directly responsible for the, consequences of the fatal shot fired by him.
13. Coming now to the next important contention, relating to the evidence of recovery of pistol P. 1 the learned Additional Advocate-General tried to argue that the appellant was arrested on 26-1- 1966 at 10 a. m. From the house of Taj Din alias Goonga, when pistol P. I was allegedly recovered from his possession. It is stated that it was on the same evening at 5.55 p. m. That after having been interrogated during the day that he was ultimately shut in the lock-up and a formal report No. 13/D-F. Was made in this regard to the effect that nothing had been recovered on his personal search. It was argued that this could not negative the evidence of recovery of the pistol which is otherwise based on' the testimony of Agha Khan P. W. 13 and Nur Muhammad P. W.14 who could not justifiably be dubbed as stock-witnesses of the M0 police. In answer to the argument that no person from the --' locality had been associated with the search, the learned Additional St` Advocate-General contended that no such question was put to M, the police Officer who might have had good reasons not to do so. p Ch Reliance was placed in this regard on. Mela and others v.
The State (PLD 1962 Lah. 58). We feel that the argument has been sufficiently met.
14. In answer to the objection that the search of the house of Taj Din was conducted in violation of the provisions contained in sections 164 and 165, Cr. P. C. For the reason that he and his wife being admittedly present were not associated with it, the learned Advocate-General contended that the omission was not vitiative of the proceedings and that any irregularity on the part of the police officer conducting search would not invalidate the proceedings. Reliance was placed in this regard on Kochan Velayudhan v. The State of Kerala (AIR 1961 Ker. 8) and United Oil Mills v. Collector of Customs and Central Excise Cochin (AIR 1963Kerala 241). Having regard to all the concomitant circumstances, we are not, fully convinced as to the genuineness of the recovery of pistol P. 1 for more than one reason. In the first instance, from a perusal of the applica--tion Exh. P. G. Dated 26- 1-1966, moved on behalf of the appellant by his counsel before the S. D. M. Okara, would clearly show that the appellant was already in the custody of the police, that no remand had yet been taken by the Investigating Officer, and that the appellant was apprehensive of being tortured. This, considered in the light of report No. 13 dated 26-1-1966 Exh. D.F. Indicating that nothing was recovered on the personal search of the appellant, would give an impression that the recovery ofpistol P.1 was not free from doubt. What is more surprising, however, is the fact that no empties were recovered at the spot, and he carried them all along in his pistol which were recovered from its chamber along with one live cartridge. On the top of it there is a clear violation of section 172, Cr.
P. C. In that no reference was made in the case diary to the place of recovery as admitted by Manzoor Ahmad S. I. In his cross-examination. Consequently, we do not consider it safe to place reliance on this rather doubtful evidence of recovery. But even if the evidence of recovery is excluded from consideration, and it is also conceded that the provisions contained in sections 165 and 172 of the Cr. P. C., were not strictly complied with by the Investigating Officer, we are clearly of the view that in the presence of direct over-whelming and reliable evidence available against the appel--lant, supported by medical evidence, the case against the appellant was proved to the - hilt. Consequently, we dismiss' this appeal and confirm the sentence of death.
15. In view of our finding on the doubtful nature of evidence of recovery, it would follow as a necessary corrolary therefrom that the appellant's conviction under section 13 of the Arms Ordinance was not well founded and has to be set aside. Accord--ingly, his appeal No, 422 of 1968 is allowed, which otherwise would be wholly immaterial in view of the confirmation of the sentence of death.