' ARAB FARRUKU, J.-Nazir son of Taja aged 35 years along with Ghulam Ali son of Chawa aged 25 years resident of Wara Laeb Singh Tehsil Nankana Sahib, District Sheikhupura, was tried by Additional Sessions Judge, Sheikhupura, for the murder of Sharif son of Nazir Ali. Vide order, dated 26-2-1976, the learned trial Court has acquitted Ghulam Ali and convicted the appellant for the murder of Muhammad Sharif and sentenced him to death and a fine of Rs. 5,000 in default of the payment thereof he has been directed to undergo two years' R. I. Out of the fine if realised, a sum of Rs. 4,000 has been directed to be paid to the heirs of the deceased. Appellant has filed Cr. Appeal No. 250 of 1976 while record has been submitted for confirmation of death sentence which bears M.
R. No. 289 of 1976. We propose to dispose of both the matters by this judgment.
2. The occurrence took place on the night between 2nd and 3rd of July, 1974, on a pathway in the area of Village Naliwala, two-and-a-half miles from P. S. Nankana Sahib. F. I. R. Exh. P. A. Was lodged at 6-15 a. m. On 3-7-74 by Muhammad Hanif (P. W. 5) brother of the deceased. The same was recorded by Qadir Hussain (P. W. 4) Head Constable.
The case for the prosecution in brief is that Nazir accused was carrying an illicit liason with Mst.
Fatima alias Fatti wife of Muhammad Hussain. Muhammad Sharif deceased was a friend of Nazir appellant and he also developed illicit relationship with Mst. Fatti which Nazir Ahmad did not tolerate. Apparently, he continued to be the friend of the deceased but inwardly he planned to murder Muhammad Sharif.
3. On the fateful night, they decided to see picture in a cinema house in Nankana Sahib for which purpose the deceased besides the two accused, was joined by his brother Muhammad Hanif (P. W.
5) and Muhammad Hussain (P. W. 6). After seeing the show, on their way back when they were at about one-and-a-half miles from the Village, Nazir Ahmad appellant fired a shot which hit the deceased. He fell down and three more shots were fired hitting the deceased. Ghulam Ali is also attributed a sota blow. The two accused had carried the weapon with them from the beginning. It will be pertinent to note that at the trial the complainant has changed the version to the extent that the appellant and his co-accused had met them on their coming out of the picture house after the show.
4. On receipt of information and the registration of the case, the police reached the spot and collected four empties Exhs. P. 1 to P. 4 vide Memo. Exh. P. B. Which was attested by Muhammad Hussain (P. W. 9), Fariad Ali who was given up and Abdul Rashid A. S. I. (P. W. 12). The empties were sent to the Expert on 8-7-1974. Amongst the other belongings of deceased Cinema Ticket (Exh. P. 2) was recovered from the person of the deceased which was taken into possession vide Memo. Exh.
P. J.
5. Both the accused were apprehended by Roshan Din (P. W. 11) on 13-7-1974. On the same day licensed gun (Exh. P. 10) belonging to Nazir appellant and Arms Licence (Exh. P. II) and special permit slip (Exh. P. 12) were taken into possession vide memo. Exh. P. G., which recovery is supported by Abbas (P. W. 10) and Roshan Din (P. W. 11), Fariad Ali the other attesting witness of this recovery was given up as unnecessary. According to the report (Exh. P. J.) of the Forensic Expert who has appeared as P. W. 13, the empties were fired from the licensed gun recovered at the instance of Nazir Ahmad appellant.
6. The prosecution case is based on the ocular testimony of Hanif P. W. 5 who is a brother of the deceased and Muhammad Hussain (P. W. 6) who was living in the house of the complainant.
Besides there is, recovery of empties and their matching with the licensed gun of the appellant ; motive and m edical evidence.
' The accused has denied the allegations and attributed his involvement due to enmity.
7. Doctor Abdul Razaq (P. W. 1) performed the post-mortem on the dead body of Muhammad Sharif deceased and found the following injuries :- (1)A fire-arm entrance wound oval in shape 1 x 1' situated on the back of upper part of left shoulder.
There was burning and blackening around the edges of the wounds. The wound was passing into the chest, there was fracture of the scapula. There were five wounds of exit on the front of left side of chest in an area of 4i. X 3' these were separated from each other. Two pellets were found, on the front of left side of the chest. On internal examination, there was fracture of the 3rd, 4th, 5th left ribs.
The left lung ruptured in multiple pieces. A card board piece found into front of the left side of the chest.
(2) A fire-arm entrance wound x 11', situated on the left buttocks in the upper part and, there was fracture of the left hip bone, and femur. There was burning and blackening of the edges of the wound. The wounds of exit were on the outer and front of upper part of the left thigh. The dimension of each was 1" x I". Four pellets removed from the front of the upper part of the left thigh. The muscles of the upper part of the thigh were lacerated.
(3) A burnt area le x 1% situated on the front of the upper part of the left leg, 44" below the knee.
(4) A fire-arm entrance wound, 41 x 21' s 2f' situated on the front of the right leg, 44" below the right knee. The wound was irregular in shape and there was burning around the wound. The muscles were badly lacerated. There was comminuated fracture of Tibia and fibula. The wounds of exit were five in number in area of 3' x 2'.
(5) Five fire-arm entrance wounds, in an area of 41' x 1". Tbey were separated from each other and were situated at the back of the lower part of the right thigh. The edges of the wound were black.
The wounds were superficial. One pellet was found in front of middle of right thigh.
(6) Abrasion, x on the left iliac crest.
' The observations of the doctor are self-contradictory Dimension of injury No. 4 (44" x 2' x 24") suggests that the shot was certainly fired from a distance in which case there would be no burning around the wound. Similar is the case of injury No.
5. The Doctor, moreover, has accepted the possibility of the injuries Nos. 3 and 4 having been caused by one shot. This is again not possible. This would make the dispersion of pellets as wide as nearly a foot which will indicate the shot having been fired from still a longer distance. In that case too there would be no blackening or burning around the injury.
' Since nothing turns on medical evidence in this case, we need not go further into this aspect.
8. It is alleged that Nazir appellant was carrying on with Mst. Fatima alias Fatti the wife of his brother. Sharif deceased and Nazir are stated to be friends. It is alleged that Sharif also developed illicit liason with Mst. Fatti which hurt the feelings of the appellant, inwardly he planned to do away with Muhammad Sharif though ostensibly he continued to be a friend. It is not impossible that Nazir may have carried on with his brother's wife and felt offended only when Sharif developed the same relationship, but we cannot rule out the possibility that the relationship of Nazir with Mst. Fatima alias Fatti may be a mere allegation while those of Sharif with Mst. Fatti may be true in which case the husband whose name is also Muhammad Hussain may also have felt hurt. Even if we were to hold the motive as true, it cuts both ways, that can be the reason for murder at the same time a reason for a genuine suspicion against the appellant.
9. The ocular testimony in this case comprises of P. W. 5 Hanif, a real brother of the deceased, and P. W. 6 Muhammad Hussain who claims to be residing with the complainant party.
' As far as Muhammad Hussain is concerned, he was declared as hostile and cross-examined by the learned Public Prosecutor. Admittedly, Muhammad Hussain hails from Chak No. 559/G. B., Tehsil Jaranwala, District Faisalabad and is registered as a voter in that Chak. He does not know any resident of Nankana Sahib. He has indulged in self-contractions vis-a-vis his statements before the Police and that before the Committing Magistrate. We do not find him worthy of any reliance. P. W.
5 Hanif is the real brother of the deceased. The occurrence has taken place sometime after 12-30 or 1 a. m. In the night that is after the last show of picture at a location which is not populated, being a path leading from Nankana Sahib to Village Laeb Singh. The place of occurrence is 1 miles from Village Laeb Singh. The deceased admittedly has received the first shot in the back and on his falling, three more shots were fired. Hanif has indulged in very material self-contradictions.
According to the first information report, the deceased and the accused made a programme to see the picture and the two witnesses joined them in village Laeb Singh and they all came together to see the picture. At the trial his case is that after seeing the show when they came out of the picture house in Nankana Sahib, they, saw Nazir appellant armed with gun and Ghulam Ali acquitted coaccused armed with sota. He has been duly confronted with all the variations at all the stages bit by bit and he has failed to give any plausible explanation.
10. It is difficult to believe that if the appellant had to kill Muhammad Sharif they should do so carrying the two witnesses along (including P. W. 5 the real brother of deceased) right from the village, travel to Nankana Sahib see the picture and thereafter on way back while they were only one-and-ahalf miles from the village, murder Muhammad Sharif and spare the two witnesses to get them hanged. There is not a scratch on either of the two witnesses. Even if we were to assume that the two witnesses joined unexpectedly the appellant could have waited for a chance which was available to him all the time as they were friends and living in the same village. We are not told any impelling reason or cause of immediate provocation, leading the appellant to execute his plan on that very night in the presence of the eyewitnesses.
' It is also noteworthy that only one counter-foil of the ticket has been found amongst the belongings on the person of the deceased. If all the three, or including the two accused, all the five were together and only one person purchased the ticket then normally all the counter-foils should have been with the same person. Recovery of only one counter-foil reasonably indicates that the deceased was alone though on this factor alone we cannot hold the same with certainty, as it is equally possible that each may be holding his own ticket. The time of occurrence, location of the dead body, injury in the back, finding of only one counter-foil of a ticket, not a scratch on the person of P. W. 5 Hanif, the real brother, not even an allegation of attempt on the life of Hanif P. W. At the time of occurrence, is all more consistent with the assertion that occurrence was not witnessed and the assailant or assailants escaped unidentified.
' In the circumstances stated above, prudence requires that we should look for a very strong corroboration qua not only the version of Hanif P. W. 5, but also qua the implication of appellant beyond reasonable shadow of doubt.
11. The report Exh. P. J. Of the Forensic Expert Muhammad Samar (P. W. 13) being positive, strong corroboration could be available if we were to find the alleged recoveries of empties (Exhs. P. 1 to P.
4) from the spot and the recovery of the licensed-gun of the appellant, as genuine and aboveboard, but we are afraid we cannot come to that conclusion for the reasons mentioned below.
' The solitary witness produced besides the Investigating Officer to prove the recoveries of empties Exhs. P. 1 to P. 4 is P. W. 9 Muhammad Hussain another brother of the deceased. Naturally, when there is need for corroboration of a witness, it cannot be by his own statement. It is admitted at page 28, line 8 : "No witness of the recovery memos is a non-relation of the deceased. However, non-relation respectable persons were present at the time of aforesaid recoveries."
' The non-production of independent persons, in these circumstances, reflects on the genuineness of the recovery, and it also offends the intention and principle incorporated in section 103 of the Criminal Procedure Code.
Further the empties are not mentioned in the inquest report (Punjab Police Rules, 1934, Rules 25.35 and section 174, Criminal Procedure Code), nor in the first inspection note prepared by the Investigating Officer. There is no mention of the empties lying at the spot near the dead body in the first information report, though the complainant at page 19, line 49 of the High Court's paper book asserts that he stated so in the F. I. R. From the cases reported in Allah Bakhsh v. The State (1), Ibrahim v. The State (2), Farid v. Aslam (3) and Yousuf and others v. The State (4) the principle deducible is, that if the fact or a circumstance is otherwise established by credible evidence, on the mere fact that entries in the relevant columns of the inquest report or in the F. I. R. Is not made, that fact or circumstance cannot be ruled out of consideration, as this does not involve any violation of law and the requirement in this regard is mere directory. In this particular case, the Sub-Inspector at page 27, lines 28 to 30 has specifically stated that, "in columns Nos. 22 and 23 of the inquest report Exh. P. H./2, also I have made cross-mark which meant 'No' in both the columns. ' So there is a specific statement by the Investigating Officer that he did not find anything nearby. The explanation offered in the next sentence does not make any sense. It reads as :- "These Columns Nos. 22 and 23 do not relate to murders in the inquest report Exh. P. H.
2. I have not mentioned anywhere as to the discovery of crime empties near the dead body or at the spot."
' We would examine this also in the context of the assertion of the complainant that he mentioned the presence of the empties while dictating the F. I. R. Which fact does not find mention. Had he stated so the first thing that the Investigating Officer would have taken into possession would have been the empties and the same would have been certainly mentioned in the inquest report instead of the specific statement "No". We do not find the evidence on this point credible enough to treat the recovery of the empties as genuine.
' Even if the recovery of the empties was held to be genuine and aboveboard, the alleged recovery of gun on 13-7-1974, when the appellant was allegedly arrested is extremely doubtful. Solitary public witness (P. W. 10) Abbas brother of deceased) produced in Court to establish the recovery of the gun has made the following admission at page 25, lines 35 to 41 :- "1 went to the spot and returned from the spot at about 2-00 p. m. The police also left the spot at about 2-00 p. m. The next day, the police again came to my village to arrest the accused. The police arrested Nazis accused produced his licensed-gun to the police in the {{FOOT NOTE}}
(1) PLD 1978 SC 171 (2) 1968 SCMR 1240
(3) PLD 1977 SC 4 (4) 1970 P Cr. L J 57 {{FOOT NOTE}} village. It is incorrect that the police examined gun Exh. P. 10 to know as to whether or not this gun is broken or in order. The police did not fire the gun Exh. P.
10. '
Reference to visit to the spot and return from there at 2-00 p. m., is obviously to the morning following the night of occurrence. Place of occurrence being one-and-a half-miles away from the village, after the despatch of the dead body, collection of blood, recoveries, if any, and the completion of other formalities by the police and their return, there is no sense in the witness visiting the spot on any later day. The timing given by Abdul Rashid A. S. I. (P. W. 12) on page 28 lines 2 to 6, namely, "I was free from the process of preparation of recovery memos. Etc., at 12.00 noon.
The dead body was sent to the mortuary from the spot at about 12 o'clock in the noon but I remained at the spot afterwards, "tallies with the same. We have checked the Police File as well.
There is no visit to the spot subsequent to their return from spot on the morning following the night of occurrence. We, therefore conclude that according to P. W. 10 Abbas arrest of Nazir works out to be on the 4th of July.
' Admission by the real brother of the deceased has gone unchallenged by the prosecution.
According to Abbas (P. W. 10) the arrest of the petitioner works out to be on the 4th of July, 1974, on which date he produced the gun before the Investigating Officer. The case of the defence suggested to Roshan Din (P. W. 11) Sub-Inspector at page 26 lines 18 to 22 quoted below, gets fully established from this admission :- "It is incorrect that I had arrested Nazir accused on 4-7-1974 in the village and that I had not shown his arrest in the police papers on 4-7-1974. It is incorrect that I had fired gun Exh. P. 10 myself."
Accordingly the arrest of the appellant being made on 13-7-1974 and the recovery of the gun thereafter is extremely doubtful. We also do not understand the reason why the gun has been despatched still twelve days later I. e., on 25-7.1974. All this seems to have been done to show credence to this recovery and positive report Exh. P. J. Of the Forensic Expert. For this purpose the empties are shown to have been recovered on 3-7-1974; despatched to the Expert on 8-7-1974; gun is shown to have been recovered on 13-7-1974 and despatched on 25-7-1974.
12. The occurrence has taken place sometime after 12-30 or 1-00 p. m. According to Hanif complainant (P. W. 5) on finding the deceased dead as a result of the shots he left for Police Station Nankana Sahib where he lodged F. I. R. Exh. P. A which was recorded by Qadir Hussain P. W. 4 at 6-15 a. m. The place of occurrence is 2i miles from the police station. In these circumstances, the first information report also appears to be much belated. Learned counsel has contended that in all probability in the morning when people from the village have left for Nankana Sahib on their routine business, they found the dead body near the path, recognized and informed the relatives and thereafter on settling the suspicion against the appellant, they concocted the story and lodged a report. He submits that it could be possible that the deceased having not returned home, the relatives got worried and early in the morning left for Nankana Sahib where he had gone to see a picture. On their way, they found the dead body near the path and then lodged the report, ante timing the F. I. R. We cannot term this argument as wholly without force.
13. In these circumstances, we find that the prosecution has failed to establish its case beyond reasonable shadow of doubt. We allow the appeal and acquit the appellant. He be released forthwith if he is not needed in any other case.