MUHAMMAD HALEEM, J.-This appeal, by special leave arises out of the judgment of the Lahore High Court dated 24th of March 1976, by which the convictions and sentences of the appellants were maintained.
According to the prosecution; Muhammad Akbar, son of Captain Fateh Khan, was murdered in 1955 and in that murder case Muhammad Nazir was tried alongwith others but was acquitted.
Thereafter, Muhammad Nazir, feeling apprehensive of his own life, settled in Sargodha City. Four days prior to the present incident, his mother died in village Padhrar and he came to the village to attend to her burial. On 13th of January 1973, he, alongwith Muhammad Amir and Abdur Rashid, left for his Dera to participate in the "Fatiha Khawani" of his late mother. And as they passed through the main street of the village, the appellants and Zumurrad accosted them in front of the house of Syed Wilayat Shah ; and from amongst them Zumurrad, after raising a Lalkara, fired the first shot which struck Muhammad Nazir on his chest. Muhammad Nazir, thereupon, turned in a bid to escape from there, but the appellants fired shots hitting him on his back. Muhammad Nazir, thereupon, fell to the ground and succumbed to his injuries. Zumurrad and the appellants, thereafter, fled from there. In the meantime, Muhammad Amir and Abdul Rashid, seeing the deceased being caused injuries with the fire-arms, took shelter behind a wall to escape from being hit. One Muhammad Akbar Khan also witnessed the incident from the roof of the house of Fateh Muhammad. Muhammad Amir next went to Police Station, Katha Sagbral where he lodged the first informa--petition report a* 2 p.m. The same day.
From the spot, Muhammad Ashraf, S. I., collected blood-stained earth and also took into possession four crime empties of .12 bore. These articles were sent to Malkhana through Dost Muhammad, a Foot-Constable, on 15th of January 1973. The appellants and Zumurrad were produced before Muhammad Ashraf, S.1., by Captain Fateh Khan on 21st of January 1973, and they were arrested.
Allah Bakhsh, the first appellant herein, produced his licensed gun from the room of his house situate in village Padhrar which was seized. Muhammad Nawaz, the second appellant herein, next produced his unlicensed gun from the Baithak of his house in the same village which was taken into possession. Zumurrad also produced his licensed gun from his house which too is situate in the same village. This gun was also taken into possession. These seizures were made on 21st of January 1973, and the guns were despatched to the Malkhana the same day.
The sealed parcels containing the crime empties and the blood-stained earth were taken to Lahore by Muhammad Yousaf, a Foot Constable, on 19th of January 1973, for delivering them to the Ballistic Expert and the Chemical Examiner. The sealed parcel containing the blood-stained earth was delivered to the 'Chemical Examiner on the 20th of January 1973, and the one containing the crime empties was delivered to the Ballistic Expert on the 22nd of January 1973. The sealed parcels containing the three guns were despatched to the Forensic Laboratory through Muhammad Hussain, another Foot Constable, on 26th of January 1973, and they were delivered on the 27th of January 1973.
The earth was found to be stained with human blood. The crime empties marked C/1 and C/2 were reported to have been fired from the gun seized from Allah Bakhsh and crime empties marked C/3 and C/4 matched with the gun produced by Muhammad Nawaz.
The deceased had six fire-arm injuries out of which one was an exit wound. They were on his chest, back and buttock.
The appellants are cousins inter se whereas Noor Elahi, the father of Zumurrad, the acquitted accused, is their cousin. Captain Fateh Khan is the real brother of Noor Ilahi. Zumurrad is married to a daughter of Captain Fateh Khan. A sister of Zumurrad is married to Muhammad Ashraf, a son of Captain Fateh Khan. They are related to the complainant party. Sher Muhammad, the paternal grandfather of Muhammad Amir, P. W. 13, Jahan Khan, Ahmad Khan and Noor Khan were maternal cousins. Allah Bakhsh is the son of Jahan Khan and Ahmad Khan is the father of Nawaz whereas Noor Ilahi, father of Zumurrad is the son of Noor Khan, as earlier stated. Mst. Tharri who was the maternal cousin of Muhammad Amir's father, was the maternal grandmother of Zumurrad. The deceased was the maternal cousin of Muhammad Amir. Abdur Rashid, P. W. 14, is related to the deceased. His father-in-_law is the first causin of Abdur Rashid's father. Again, Abdur Rashid is related to Zumurrad as his cousin's wife, Mst. Ghulam Bibi, is a daughter of maternal uncle of Zumurrad. Sharif is the son of the maternal uncle of Abdur Rashid's wife who is a "Hamzulf " of Captain Fateh Khan. The mother of the deceased was the paternal aunt of Malik Karam Bakhsh, M.
N. A., who was also tried alongwith the deceased in the murder case of Muhammad Akbar and it was said about him that he owned properties yielding a large income and wielded influence in the locality. It is clear from the above that the parties are related inter se and it was because of the murder of Muhammad Akbar Khan that A not only the deceased left the village but also Captain Fateh Khan who shifted to Multan.
At the trial the prosecution examined Muhammad Amir and Abdur Rashid to furnish direct evidence in the case. The trial Court held that they had given a cogent reason for their presence alongwith the deceased at the time of the incident and their evidence was corroborated not only by the injuries on the deceased but also by the fact that the F. I. R. Was lodged within an hour of the incident in which the names of the assailants were disclosed. The trial Court further held that corroboration was also furnished as against the appellants by the matching of the crime empties with the guns recovered at their instance. The trial Court believed the motive as it transpired in the evidence that it was the deceased who had played the principal role in the murder of Muhammad Akbar Khan, therefore, he was singled out from amongst those who were tried and acquitted. In regard to Muhammad Amir, P. W., and Abdur Rashid, P. W., it was held that besides their relationship with the deceased, no material was brought on record to establish their animus against the appellants and Zumurrad. Accordingly, the trial Court rested the guilt on their evidence and on that of the recovery witnesses, Ghulam Muhammad, P. W. 10, and Ata Muhammad, P. W. 12, who were equally related to the parties and had no reason to give false evidence as to the recovery of the crime empties and the guns. In conclusion, the trial Court convicted the appellants and Zumurrad under section 302, read with section 34, P. P. C. And finding no circumstance which could mitigate the sentence, it sentenced them to death and to pay a fine of Rs. 5,000 each or in default to suffer rigorous imprisonment for two years.
On appeal and reference, the High Court acquitted Zumurrad but upheld the conviction and sentences of the appellants. In acquitting Zumurrad, the High Court held that the trial Court was wrong in convicting him solely on the ocular testimony of the eye-witnesses who, although present at the time of the incident, had motive to falsely implicate their enemies. In upholding the convictions of the appellants, the High Court accepted the evidence of the recovery witnesses as to the seizure of the crime empties from the spot and the production of the guns which were proved to be the crime weapons.
The complainant and the State preferred separate petitions for leave to appeal against the acquittal of Zumurrad by the High Court. The appellants also craved for leave to appeal by a separate petition. By order dated 18th of February 1977, this Court dismissed the petitions against acquittal of Zumurrad and granted leeve to the appellants to consider as to whether the High Court was justified in accepting the evidence of recoveries which distinguished their case from that of Zumurrad.
While formulating his points, Mr. M. B. Zaman, on behalf of the appellants, challenged the merits of the ocular testimony not only on the ground that it was interested but also because it was highly improbable. In stressing the interested nature of the evidence, the learned counsel submitted that the animosity was so great as between the parties that both the deceased and Captain Fateh Khan had left the village and taken residence in other cities. The witnesses, though equally related, owed allegiance to one party or the other, therefore, even if no personal enmity was established against the two eye-witnesses, still the long-standing enmity provided a strong motive for them to implicate innocent persons. Therefore, in the absence of independent evidence, their ipse dixit as to the appellants having participated in the crime would hardly be of any evidential value ; the more so when it suffered from inherent improbabilities. It was next pointed out that in the F. I. R. It was disclosed that they were armed with single barrel guns and in all three shots were fired ; contrary to it the medical evidence disclosed that the deceased had suffered five gunshot injuries and four crime empties were recovered from the spot but none of the witnesses has stated that the appellants had reloaded their guns. It was next submitted that it is not possible to believe that the deceased would have remained standing after receiving the first shot on his chest and the others on his back in a bid to escape from there. This, according to the learned counsel, rendered then presence doubtful at the time of the incident.
I would dispose of this contention on the short ground that in refusing leave to appeal against the acquittal of Zumurrad who had the prime motive to commit the murder, this court accepted the conclusion of the High Court that the testimony of the eye-witnesses could not be accepted without corroboration as they had a motive to implicate their enemies, which was not available against him. Therefore, his acquittal was justified on the principle of the safe dispensation of justice.
Accordingly, the issue as to the re-appraisal of the evidence stands foreclosed and the only limited question on which we are called upon to decide this appeal is as to whether the evidence of the recoveries of the incriminating articles should be accepted against the appellants and for this limited purpose the evidence should be re-appraised.
Mr. M. B. Zaman, learned counsel for the appellants, attacked the genuineness of the recoveries : firstly, on the ground that the crime empties were not actually seized but manipulated as they were not mentioned in the F.
1. R., nor in columns 22 and 23 of the Inquest Report nor in the short statement of facts recorded in this report nor was the place pointed out to the draftsman from where the crime empties were .Picked up ; and secondly, that there was not only a delay in sending the crime empties to the Ballistic Expert from 15th of January till the 19th of January but also there was no explanation as to why the crime empties were not deposited on the 20th with the Ballistic Expert particularly when the other sealed parcel taken alongwith it was deposited with the Chemical Examiner on that date. Another suspicious feature which was highlighted in this connection was that the Constable who took the sealed parcels returned to the Police station on the 20th but again returned to Lahore and deposited the parcel containing the crime empties on the 22nd of January. There was, therefore, the possibility of manipulating the crime empties during the intervening period as the guns had already been secured.
Adverting now to the first objection, the evidence relating to the seizure is provided by Muhammad Ashraf, S. I., P. W. 16, Ghulam Muhammad, P. W. 10, Dost Muhammad, P. W. 6 and Muhammad Amir, P.
W.
13. It was vehemently urged that if the crime empties were lying 1 J karams from the dead body then it was unlikely that they would have gone unnoticed. Therefore,. The failure to mention them in the F.
1. R. Cannot be accepted as a mere omission but is a circumstance which weighs against the presence of the crime empties at the spot.
Muhammad Amir, P. W. 13, on being questioned about the crime empties, stated that he did not notice them lying at the spot when he went to lodge the report but he saw them lying at a distance of 1 J karams from the dead body When he returned alongwith the S. I. The presence of the crime empties at the spot was a likely feature as guns used in the crime were single barrel and were reloaded as more than three shots were fired. The omission to observe them must be out of confusion resulting from the unforeseen catastrophe having taken place within his view. There is also the circumstance that he and the other eye-witness had to take refuge to avoid being hit which in itself was a feature sufficient to unnerve him and to cloud his faculty to observe each and every detail. It is also an admitted' fact that he had traversed a distance of seven miles and lodged the F. I. R.I within an hour of the occurrence. In that event, he must have remained B for a little time at the spot and, if at all, he had failed to notice the crime empties and, therefore, did not mention them in the F.
1. R., the omission cannot be of any consequence. The trial Court also did not rightly place any importance on such omission as it held that he must have been -in a state of shock having seen his real cousin murdered within his view and, therefore, in that state he may not have noticed the crime empties lying at the spot before lodging the F. I. R. It is not the requirement of section 154, Cr. P. C. That invariably such a detail should be mentioned which only provides for the giving of information relating to the commission of cognizable offence. And if other ancillary details are given, it is by way of abundant caution.
The next witness on this point. Is Dost Muhammad, P. W. 6, a Foot Constable, who had accompanied the Investigating Officer to the spot. He had first stated in cross-examination that the 5.
1. Did not pick up the crime empties from the spot within his view but when he was reminded of his statement before the Inquiry Magistrate, he readily admitted that the S.1. Did pick up three or four crime empties from the spot. He also denied having earlier stated that the S. 1. Had picked up the crime empties but on being confronted with his admission, he conceded that his statement in regard to the seizure of the crime empties was correct. Even in his first statement he did not deny the presence of the crime empties but all that he stated was that the S.1. Did not pick up the crime empties within his view. Therefore, his earlier denial as to the seizure of the crime empties is not meaningful at all. And the fact remains that he did testify to the presence of the crime empties at the spot which were secured by the S. I. The third witness in the series is Muhammad Ashraf, S.1. He has testified to having picked up the four crime empties in the presence of the recovery witness, Ghulam Muhammad, P. W.
10. The crime empties were seized after he had prepared the inquest report. No foundation was laid in his evidence to lead to a reasonable inference that he was instrumental in planting the crime empties at that point of time. The submission of the learned counsel was that no crime empties were lying at the spot, but if at all they were lying at 1t karams from the dead body then the S. 1. Would not have omitted to mention them in columns Nos. 22 and 23 of the inquest report and in the short statement of facts recorded therein as provided by rule 25.35 of the Punjab Police Rules. The S. 1. Was questioned on this point and the answer was that he did not do so "because the empties were lying at a distance of 1 I karams from the dead body". As for not mentioning the presence of the crime empties in the statement of facts, the S. I. Did not give any explanation nor did he offer any explanation for not showing to the draftsman the place where the crime empties were lying. Column 22 provides for the securing of the articles lying on the dead body and, therefore, his explanation so far as column 22 was concerned, was justified but that explanation would not satisfy the requirement of column 23 which provides for the seizure of articles lying near the dead body. And, as in the present case, the crime empties were lying 1 J karams from the dead body, therefore, being near to the dead body, they should have been mentioned in column 23. Not having done that, the omission, in my opinion, could not lead to the conclusion that the crime empties were not there, for, a little later, they were seized under a memo.
Which fact. Is Proved not only by Ghulam Muhammad but also by Muhammad Amir .And Dost Muhammad. In this respect, there was a compliance of sub-rule (7) of rule 25.33. The seizure was a physical fact and, therefore, the failure to mention them was a mere irregularity without any legal consequence as will be presently seen.
It is not a requirement of section 174, Cr. P. C. That the articles lying near the dead body should also be mentioned in the report which only refers to describing wounds or other marks of injuries as may be found on the body and stating in what manner or by what weapon or instrument such injuries appear to have been inflicted. Therefore, there is no infraction of this provision if the articles are not mentioned in column 23 of the inquest report. Rule 25.35 does not provide for submitting a list of articles found near the dead body. Only the requirement of column 22 is provided by sub-rule
(3) (e) of rule 25.35 which specifically refers to a list of the articles on or with the dead body if the body is sent for medical examination. Therefore, technically speaking, there is no violation of this rule even if the S. I. Failed to mention the crime empties in column 23 of the inquest report. Such requirement, even for argument sake, if it has the sanction of the. Rule as having been provided in the prescribed form, is directory as the rule itself fails to provide any result to follow if not complied with. See Chief Commissioner, Karachi v. Jamil Ahmad and another (PLD 1961 SC 145). I may here refer to the cases cited at the Bar.
1968 SCMR 1240) the Investigating Officer had not mentioned the names of the witnesses in the inquest report but the observation in that case is that this is not a requirement of section 174, Cr. P.
C. So as to require compliance. In Farid v. Aslam and 4 others (PLD 1977 SC 4) it was held that the omission to mention the crime empties which were lying four karams from the dead body in the inquest report was not of any consequence whatsoever when otherwise the presence of the crime empties was proved by the evidence on record. Accordingly, no value was given to the omission to mention the crime empties in column 23 of the inquest report. In Yousaf and others v. The State (1971 PCr.LJ 257) the Investigating Officer firstly, failed to record the crime weapons in column 12 of the inquest report lying near the dead body and secondly, that he did not mention in column 23 of the inquest report "the availability of the torch and the scabbard at the place of occurrence". The first omission was held to be an infraction of section 174, Cr. P. C. And the second, a violation of rule 25.35 of the Police Rules. I may add that column 12 requires an opinion as to the kind of the crime weapon used which is the requirement of section 174, Cr. P. C. And not that the crime weapon, I found lying, should also be mentioned. Accordingly, there can be no violation of section 174, Cr. P. C.
If the S. I. Had expressed his opinion as to the kind of the weapons used. In any case, it would be a question, of fact as to whether such weapons were seized and the evidence, if otherwise reliable, cannot be rendered incredible merely because the S. 1. Had failed to mention the crime weapons lying at the spot in that column. As for the second omission, it will have no effect, for, rule 25.35 does not provide for the information as required by column 23.
Similarly, if in the statement of facts recorded in the inquest report the crime empties were not mentioned, it will be of no consequence and this would equally apply to the omission in not pointing out the place to the draftsma n from where the crime empties were picked up. There is no rule, by which their compliance can be enforced. What is of importance is the evidence which seeks to establish the presence of the crime empties. As such the omission in either case is devoid of force.
The learned counsel invited our attention to Exh. D. B. Which is the copy of Report No. 5 dated 15th of January 1973, and submitted that the words "Aik Adad Parcel Mahmoola Sar ba Muhar Khaul Kartoos '12 bore Mutalaqa Muqadama Maakoor bhee lava. Baqalam Maddad Muharrar" were added subsequently which makes the seizure of the crime empties doubtful. Nadir Khan, who scribed it was questioned on the point and this is what he stated : "That inadvertently I failed to notice the parcel containing the cartridges lying on the table but as soon as I noticed them I entered the fact of the deposit of these parcels with me."
He denied the suggestion that the words written after "Baqalam Maddad Muharrar" in this report were written by him after 15th of January 1973. This document is a copy of the original which was produced from the office of the S. P. And was received in his office on the 18th of January 1973. The carbon impression of the added words are alike with the rest of the contents and, therefore, it is reasonable to infer that they were written in the same strain and at the same time. If the argument is that they were added after the recovery of the guns, then it is of no consequence as the copy had been sent to the S. P's. Office before the seizure of the guns. There is unequivocal evidence to prove that the parcels containing the crime empties and the blood-stained earth were entrusted by the S. I. To Dost Muhammad on 15th of January 1973.
Therefore, the suggestion being devoid of any factual basis is of no value.
The learned counsel next contended that the crime empties were not sent to the Ballistic Expert for the next three days. To explain this delay, Muhammad Ashraf, S. I., has stated that 16th and 17th of January 1973, were holidays on account of Eid-uz-Zaha. The delay of two days, therefore, stands explained. Accordingly, the delay of one other day would be of no consequence as admittedly the guns were recovered on the 21st of January 1973, and there could not be any question of the crime empties being held over for one day for any sinister purpose. As for the crime empties not having been deposited on the 20th, it was vehemently urged that there was an opportunity for manipulating the crime empties as Muhammad Yousaf, P. W., who had taken the sealed parcel containing the crime empties to Lahore, had returned to the police station on the 20th without depositing them whereas the guns were recovered on the following day and during the interval the possibility of the crime empties having been fired from the seized guns could not be ruled out. In order to dispose of this contention the evidence of Muhammad Yousaf will have to be looked into in detail. Muhammad Yousaf has stated that he took the sealed parcels from the Malkhana containing the blood-stained earth and the crime empties on the 19th of January 1973, and proceeded to Sargodha from where he obtained a docket from the Police Office and then went to Lahore and deposited the parcel containing the blood-stained earth with the Chemical Examiner.
The receipt - of this parcel is duly acknowledged in the report of the Chemical Examiner (Exh. P. N.).
Although Muhammad Yousaf stated that he had simultaneously deposited the other parcel containing the crime empties with the Ballistic Expert on the 20th but this parcel was acknowledged to have been received on the 22nd. There is yet the fact that Muhammad Yousaf admitted in cross-examination that he returned to the Police Station on the 20th January 1973. But in Exh. D. J. Which is the copy of report No. 5 dated 23rd of January 1973, he is shown to have returned to the Police Station at 4-45 p.m. That day. If at all he had returned on the 20th then this fact would have been recorded in the Roznamcha of that date which is not so. Again, if he had not delivered the parcel containing the crime empties to the Ballistic Expert then there was no occasion for him to return earlier. There is also nothing on the record to suggest that he was surreptitiously recalled on the 20th as by that date no guns had been recovered. To hold otherwise would be to 'impute premonition to the Investigating Officer which is an impossibility. I am, therefore, unable to hold that his admission had any truth in it. And as held by the trial Court, it was a concession made in favour of the appellants. The fact of the matter is that he did deposit the crime empties on the 22nd and during the intervening period he must have remained at Lahore. I may also add that 21st was Sunday on which date the parcel could not have been deposited. As for the 20th, he has not given any explanation as to why he was not able to reach the office of the Ballistic Expert. Be that as it may, the only inference possible is that it could not have been physically possible for him to do so. The learned counsel has taken exception to the observation of the High Court that he was not able to do so because he left late and reached the office after it was closed as he had not stated so. This, to me, appears to be an inference gained from the fact that Saturday was not a full working day and, therefore, he may not have reached Lahore in time to deposit both the parcels during the office hours. Accordingly, no exception can be taken to it as the High Court could rightly take judicial notice of the fact that Saturday was a half working day and Sunday was holiday. I may also add that Muhammad Yousaf's statement was recorded almost two years after the event and it is possible that he may not have been precise in giving the dates.
Therefore, nothing can turn on it. There is documentary evidence to show his return to the Police Station on 23rd of January which entry has not been proved to be false. Concluding, therefore, the seizure of the crime empties is fully established ; and if the recovery witness is regarded as interested, still there is other evidence to corroborate his statement. Again, there is no material on record to establish that the crime empties were manipulated after the recovery o fl the guns.
Lastly, the learned counsel placed reliance on Muhammad Shafi and another v. The State (PLD 1968 Lah. 869), but in the precedent case it was established as a fact that the crime empties were sent to the Ballistic Expert after the recovery of the guns. Therefore, it is distinguishable on facts.
The trial Court held that the omission to mention the crime empties in column 23 of the inquest report was of no avail. It further held that if at all the crime empties were planted then one of them would have matched with the gun produced by Zumurrad but that was not so. As to the crime empties not having been sent to the Ballistic Expert immediately in violation of the "instruction and law", but held over and sent after they had been fired from the seized guns, the trial Court held that the answer to this contention was the same as aforementioned. The High Court held that the crime empties were established to have been seized from the spot; that the failure to mention the crime empties in column 23 of the inquest report did not violate the "spirit of section 174, Cr. P. C. Nor rule 25.35 of the Police Rules" ; and that it did not further cast "any aspersion or doubt on the veracity of the investigation". Further, the High Court held that there was no interpolation in Exh. D. B. ; and that there was no substance in the contention that the crime empties were sent to the Ballistic Expert after the seizure of the guns, for, if that was so then the gun produced by Zumurrad would have also matched with one of the crime empties. Finally, the High Court concluded that there was nothing on record to show that the Investigating Officer had "any positive motive to fabricate false evidence of this serious nature on a capital charge against the appellants".
Having examined the evidence myself I am of the candid opinion that the conclusion of the Courts below in accepting the evidence of the recovering against the appellants is correct. The contentions raised are not of nature to cast reasonable doubt on the bona fides of the evidence relating to the seizure of the crime empties and their subsequent matching with the guns.
Accordingly, there is no force in this appeal which is dismissed.
ANWARUL HAQ, C. J.-I agree.
GHULAM SAMAR SHAH, J.-I agree.
QAISAR KHAN, J.-After going through the judgment of my learned brother Muhammad Haleem. J.
Proposed to be delivered in this case, it is with respect that I have to state that I do not find myself in agreement with it. I therefore proceed to record my own judgment. The facts of the case need not be reiterated as these have already been given in detail , by my learned brother in his proposed judgment. I therefore straightaway proceed with the discussion of the evidence.
The prosecution evidence in this case consists of the following pieces :--
(1) The ocular testimony of Muhammad Amir P. W. 13 and Abdur Rashid P. W. 14.
(2) Recovery of four '12 bore empties from the spot and an unlicensed gun at the instance of Muhammad Nawaz accused deposed to by Ghulam Muhammad P. W. 10 and Muhammad Asghar S. H. O. P. W. 16.
(3) Recovery of two ' 12 bore licensed guns one each at the instance of Allah Bakhsh and Zamurrad accused deposed to by Ata Muhammad P. W. 12 and Muhammad Asghar S. H. O. P. W. 16.
(4) Medical evidence.
(5) Motive.
So far as the motive is concerned Allah Bakhsh and Muhammad Nawaz accused are first cousins and Nur Ilahi father of Zamurrad accused was their first cousin. Captain Fateh Khan is the brother of Nur Ilahi and his son Akbar was murdered some twenty years back. The deceased Muhammad Nazir and a number of others were charged for the murder but all of them were acquitted. Now though that occurrence took place a long time agog yet it could be said that the accused had a motive to murder the deceased. But then motive is a double-edged weapon. If it could be the reason for the accused to murder the deceased, it could as well be the reason for the P. Ws. Who were close relations of the deceased to charge the accused false or on suspicion. Motive therefore by itself proves nothing.
So far as the medical evidence is concerned, it instead of supporting the prosecution evidence contradicts it. The doctor who performed a post-mortem examination on the dead body could not be examined but the post-mortem report was proved to be in his handwriting. A perusal of the post-mortem report in the light of the pictorials of the deceased clearly show that the deceased was hit with five shots. A perusal of the F. I. R. The correctness of which was admitted by Muhammad Amir its maker would however show that only three shots were fired at the deceased one each b the three accused. There is no doubt that in their statement at the trial the two ocular witnesses have stated that Zamurrad fired one shot and the other two 2 shots each but then that clearly appears to be improvement made b them in the earlier version. Besides the prosecution evidence is that the P. Ws. Muhammad Amir and Rashid came to the house of the decease just before 1 p.m. And all of them started for the place where Fateha was offered at 1 p.m. Now it was the month of January and in a village all o them must have taken their mid-day meals for they could not come back from the Fateha for mid-day meals for quite some time. The post-mortem report however shows that the stomach of the deceased was empty. The medical evidence therefore again contradicts the prosecution evidence. I would show that the occurrence took place much earlier than I p.m. An this finds support from the fact that the report could not in all probability lodged in the police station 16 miles away within an hour.
Now coming to the recoveries 1 shall deal with the recoveries of the four empties from the spot and the unlicensed gun recovered at the instance of Muhammad Nawaz. The recoveries of the other two shot-guns are of no importance as these were licensed guns and these must have been lying in the houses of the owners from where they were taken into possession.
1. The occurrence took place in broad daylight in a narrow street of the village. The two ocular witnesses were allegedly present close to the spot and after the occurrence they came near the injured and found the -he had expired. It is however very strange that the two did not notice the four empties which were allegedly lying at a distance of a Karam and a half from the dead body. If these empties had been prevent on the spot. Muhammad Amir would have either taken them along with him to the police station or would have at least mentioned their presence on the spot in the F. I. R. There is no mention of these in the F. I. R.
2. The Investigating Officer came to the spot soon after the report and allegedly found four empties on the spot but curiously enough he did not mention this recovery in the inquest report which he prepared on the spot at the same time despite the fact that the empties were lying close to the dead body.
3. Noor Muhammad draftsman P. W. 8 who prepared the site plan has not at all shown the place where the empties were found and has given no note with respect to them in the site plan. It was the Investigating Officer who made a note to that effect in the site plan the next day.
4. According to the F. I. R. One shot was fired by each of the three accused but strangely enough four empties were found on the spot. The improvement made by the two ocular witnesses in their statement at the trial that Allah Bakhsh and Muhammad Nawaz fired two shots each also does not take the matter any further for if Zamurrad could not throw the one empty which he had fired it is not understood why Allah Bakhsh and Muhammad Nawaz threw the second empty allegedly fired by each of them.
5. Two of the empties have been found by the Fire-arms Expert to have been fired from the unlicensed gun recovered at the instance of Muhammad Nawaz and two from the licensed guns produced by Allah Bakhsh. But the recovery of the unlicensed gun at the instance of Muhammad Nawaz on the face of it is nothing but concoction. It is in the prosecution evidence that the accused were produced to the police on the 20th by retired Captain Fateh Khan and that the unlicensed gun was recovered at the instance of Muhammad Nawaz from his Baithak the next day that is to say on the 21st where it was lying unconcealed. Now this is something which no sensible man can accept or even assert. It is simply preposterous to think that a man who is charged for murder and who is being produced to the police about a week after the occurrence would allow an unlicensed gun to lie in his Baithak and then unconcealed to be recovered therefrom at his instance. I wish we could do something to restrain the Investigating Officers from making such like foolish concoctions.
If the Investigating Officer could go to that extent then what value could be attached to his statement as regards the other recoveries.
6. It is also very strange that the empties were found on :he spot on the 13th but their sealed parcel did not reach the police station till the 15th. Furthermore the entry of the receipt of the empties in the police station vide Exh. D. B. Clearly shows that the empties were not received in the P. S. Even on the 15th and that an interpolation regarding them was made in Exh. D. B. This is clear from seeing the carbon copy of the original document received from the office of the Superintendent Police.
7. Above all the most surprising aspect of these recoveries is that these empties were not sent to the Fire-arms Expert till the guns had been recovered. The statement of the Fire-arms Expert shows that he received the sealed parcel of the empties on the 22nd when the guns had already been recovered on the 21st. In this connection the statements of Walayat A.I H. C. P. W. 3 and Muhammad Yusuf F. C. P. W. 4 make interesting reading. Walayat H. C. Has stated that be gave two sealed parcels one containing blood-stained earth and the other containing the empties to Muhammad Yusuf F. C. On the 19th for taking them to Lahore and that he reported back at the police station after delivering the parcels on the 23rd. The statement of Muhammad Yusaf F. C. On the other hand shows that the two parcels were given to him on the 19th and that after delivering them at Lahore on the 20th he returned to the police station the same day. In view of the above it is abundantly clear that the empties were never sent on the 19th but that these were sent after the recovery of the guns on the 22nd when these were received in the forensic laboratory.
8. The deceased was the son of the aunt of Malik Karam Bakhsh M. N. A. And it is in the statement of Muhammad Hamid P. W. 13 and Ghulam Muhammad P. W. 10 that Malik Karam- Bakhsh M. N. A. Had arrived on the spot before the arrival of the police and was present during the investigation.
9. The evidence regarding the recoveries of the empties and unlicensed shot-gun consists of the statement of Ghulam Muhammad P. W.
10. According to this P. W. Padhrar was a big village two miles long and half a mile wide. The statement of Ata Muhammad P. W. 12 shows that there were four Lumbardars, four Chankidars and a Dafadar in this village but of all the persons in this big village the Investigating Officer found only this, man to be a witness to the recoveries. His brother was charged for the murder of Akbar Khan which was allegedly the motive for this offence.
Abdur Rashid P. W. 14 is his cousin and Ham Zulf and for the aforesaid murder of Akbar Khan the father, brother and other relations of Abdur Rashid P. W. Were also charged along with the brother of this witness. According to this P. W. Many persons were present on the spot but he was selected by the Investigating Officer simply because he was well dressed. The strange thing about him is that he was present on the day of occurrence when recoveries from the spot were made and he wars again present on the 21st when the guns were recovered despite the fact that he lived in Mandi Bahawaldin where he worked as a motor machanic. Hel celebrated Eid according to him on the 16th and could not therefore have come for Eid to the village as alleged by him on the 13th when the occurrence took place. He allegedly went back to Mandi Bahawaldin on the 17th or 18th but strangely enough he again came to the village on the 21st to be made a witness to the recovery of the gun. The explanation and reasons given by him for his coming again to the village on the 21st makes strange reading and instead of commenting on it I would like to reproduce his statement in this respect verbatim which speaks for itself: "I went back to my work to Mandi Bahawal Din after celebrating the Eid on 16th. I left the village Padbrar on 17/18th but I am not sure about it. Gun was recovered at the instance of Muhammad Nawaz accused on 21-1-1973. 1 had come to village Padhrar on 21-1-1973 where I reached at about 7-45 a. m. My family was in village Padhrar. I was informed by my son that my daughter was ill and that is why I returned to village Padhrar on 21-1-1973. A metalled road is at a distance of some furlongs from our village. The Khushab-Chakwal Road passes through the North-West of village Padhrar at a distance of one furlong. Village Padhrar is about 2 miles long and half a mile wide. On 21-1-1973 I got off the bus at a place wherefrocn my house is at a distance of 200 yards, towards the South. I was not in hurry to reach my house although I had come because my daughter was ill.
On getting down from the lorri I first went to graveyard and visited the graves of my parents and offered Fateha. The Chakwal--Sargodha Road passes close to the graveyard on the North. It is my usual practice to first offer Fateha at my parents graves and then proceed to my house. On my way I found people present at the Police Post I went there and joined the investigation of this case.
Accused were produced before the police after my arrival there. I was not asked by the S. I. To stay for the investigation but I casually stayed there. I was asked by the S. I. To accompany him when the accused Muhammad Nawaz led to the recovery of gun. Gun was recov--ered at about 9-45 a. m. 1 begged leave from the S. I. After the recovery of gun at the instance of Muhammad Nawaz because I wanted the to go and see my ailing daughter. My employer Muhammad Shafi of Mandi Bahavvaldin was informed on the night of 19-1-1973 that my daughter was ailing but the illness was not serious. Mohammad Shall told me that he had received a telegram but I did not see it. I started in the evening from Mandi Babawaldin and stayed at Sargodha for the night. After the recovery of gun I went home. My daughter was still sick. She was suffering from Malaria fever. I had some work in hand on the 20th so I did not leave immediately on the receipt of news of illness of my daughter."
His statement regarding the recoveries was therefore of no value -whatsoever and as already remarked the statement of the Investigating Office ~T in this respect is also worthless. In view of all the above if anybody can still assert that the recoveries of the empties and the unlicensed gun have been proved that at least I am not prepared to accept it.
Now when these recoveries are kept out of consideration then we are left with the statement of Mohammad Amir P. W. 13 and Abdur Rashid P. W.
14. They are close relations. Of the deceased and are on very much' inimical terms with the accused. The deceased was the son of the maternal uncle of Muhammad Amir P. W. And Abdul Rashid P. W. 14 is the cousin of Nur Alam father of his Ham Zulf Aslam. The brother Abdus Sattar, father Shah Muhammad, aunt's son Nur Alam and aunt's grandson Aslam of Abdur Rashid P. W. 14 were charged for the murder of Akbar which was allegedly the motive for this offence. Out of these Aslam was Ham Zulf of Muhammad Amir P. W., Malik Karam Bakhsh M. N. A. Is the cousin of the deceased and P. W. Amir and the brother-in-law of the M. N. A. Namely Muhammad Shall P. W. 9 and his father Mehdi were also charged for the murder of Akbar. In view of the above since the two P. Ws. Are very much interested their statements could not be relied upon without independent corroboration. It also does not stand to reason that if the two P. Ws. Had been present near the spot the three accused would have spared them.
The High Court upheld the convictions of the two appellants as according to the learned Judges in their case the statements of the two witnesses were corroborated by the recoveries but since the recoveries have been held to be fake the appellants have therefore also to be acquitted. I would therefor accept this appeal, set aside the convictions and sentences of the accused and acquit them.
ORDER OF THE COURT