ISHRAT Versus STATE
This appeal arises from the judgment dated 18‑1‑1975 passed by the learned Sessions Judge, Sheikhupura whereby he convicted Ishrat and Mohammad Asghar appellants under section 302/34, P. P. C. and sen tenced them to life imprisonment and a fine of Rs. 500 each or to undergo one year R. I. each in lieu of payment of fine. He also directed that if the fine was recovered it would be paid to the heirs of Mohammad Ali deceased. The appellants and their counsel have not turned up but as the appeal is being accepted their presence is not necessary.
2. The facts of the prosecution case stated briefly ate teat an Ihata measuring about lit to 15 marlas situated in the Shamlat of mauza Dhagana was given to Fazal Din blacksmith and he according to tie usage of the Mauza constructed a house over it. According to the usage the Kamin who builds a house becomes the owner of it but when he leaves the place the said house is given to another Kamin. Fazal Din left the house and the Deb, three or four days before the occurrence and the co‑sharers of the Deb decided that the house would be given to another Kamin. Latif one of the accused against the usage took possession of the house. The brother hood of the Deb prevented him from doing so but he paid a deaf ear to it. On the night of the occurrence i.e. 14/15‑6‑72 at about midnight Ghulam Nabi complainant woke up ors hearing the sound of falling a wall and saw Latif son of Ilahi Bakhsh, Anwar Ishrat. Asghar, Malak and Mahmood pulling (sown the wall of the house left by Fazal Din. The complainant quietly informed Mohammad Ali deceased, Mohammad Nazir and Sana Ullah and took them to the spot. They all of them saw Mahmood and Malak pulling down the wall of the house whereas Ishrat and Asghar armed with guns and Latif and Anwar empty‑handed were, present on the roof of the house. The two persons who were pulling down the wall were prevented from doing so which led to exchange of abuses. Alam, Allah Rakha, Ghulam Haider and many others were attracted to the scene of occurrence. Anwar exhorted his companions to fire at the complainant party whereupon Ishrat appellant No. 1 fired his gun which aft the deceased. The deceased at once was removed to the house of Khuda Bakhsh Jat. Second fire was made by Asghar appellant No. 2 with his gun which accord ing tar the F. I. R. did not hit any person. The deceased was taken to Mayo hospital by first train where he was operated upon and pellets were removed from his body but he succumbed the injuries at about degerwela. After he expired Ghulam Nabi complainant proceeded to the Police Station but in the way he happened to meet Mr. Wali Mohammad, A. S. I. and reported the occurrence to him at 8‑45 p m.
3. The arrest of the appellants and their co‑accused was effected on 7‑6-71 whereafter Ishrat appellant No. 1 produced his gun Exh. P. 4 alongwith five live cartridges Exh. P. 5/1‑5 which were seized vide memo. Exh. P. D. He had also produced his licence Exh. P.
9. Asghar appellant No. 2 produced gun Exh. P. 6 belonging to one Muhammad Munir along with three live cartridges P. W. 1/1‑3 which were seized vide memo Exh. P. E. The licence and the gun Exh. P. 10 was also recovered from the owner of the gun. No cringe empty, however, was found from the place of occurrence with the result that none of the guns was sent to the Forensic Laboratory.
4. Ocular account of the occurrence was given by Ghulam Nabi complainant P. W. 12, Mushtaq Ahmad P. W. 13, Allah Rakha P. W. 14 and Ghulam Haider P. W.
15. The statement of Ghulam Nabi complainant P. W. 12 is almost the same as narrated in the facts of the case and the only difference is that in the F. I. R. he stated that the second fire was made by Mohammad Ashraf accused which did not hit any body but at the trial said that some pellets of the fire made by Mohammad Ashraf had hit the deceased. The rest of the witnesses stated that on hearing alarm they went to the spot where they found Mahmood and Malak demolishing the wall with their kassis and four persons namely, Ishrat, Asghar, Anwar and Latif present on the roof of the house of Fazal Din Lobar. Ishrat and Asghar were armed with guns whale rest of two empty‑handed. They also stated that in the lane Ghulam Nabi P. W. Nazir, Sana Ullah, Alam. Allah Rakha P. Ws. Mohammad Ali deceased and some oilier persons were present and were exchanging abuses with all the six accused persons. They further stated that Latif and Anwar exhorted their companions whereupon Ishrat fired his gun at the complainant party which hit the deceased but the fire made by Ashraf did not cause any injury to any other person. Allah Rakha P. W. 14 also stated that two months before the occurrence the village Panchaiat had taken a decision that the house of Fazal Din should be given to some other Lohar.
5. Basharat Ali P. W. 8 and Mohammad Sharif P. W. 9 are the recovery witnesses of the guns Exh. P. 4 and Exh. P. 6 produced by the two appellants respectively and both supported the recovery in their statements.
6. All the accused persons including the appellants denied the charges and pleaded that on account of their enmity with the eye-witnesses they had been falsely implicated. They examined in defence one witness Allah Din D.W. 1, petition-writer, Ferozewala. The witness proved receipt Exh. D.G the excutant of which was Fazal Din Lhoar. This receipt pertains to the sale of Malba for Rs. 340 in favour of Mohammad Sadiq.
7. The learned Sessions Judge has failed to consider two important points which go to the root of the case and make the prosecution case against the appellants highly doubtful. The first is that the F.I.R. was made after a considerable delay of 20 hours and no explanation was given by the complainant either in the F. J. R. or in his statement. The occurrence took place at midnight on the night between 14/15‑6‑72 whereas the report was made at 8‑45 p. m. on 15‑6‑72. The distance between the place of occurrence and the Police Station is only nine miles learned State counsel has said that it was necessary to save the life of the deceased, therefore, the Complainant party was justified in removing the deceased to Mayo‑Hospital to save his life. This argument is not convic ting. There were many persons and any one of them could be deputed to go to the Police Station to report the occurrence arid the rest could very well take to the deceased to Mayo Hospital. The Hospital Authorities also did not send any report before the deceased expired. This lacuna can not be over‑looked. When this delay is considered alongwith the fact that the occurrence took place at mid‑night when the date of the lunar month v, as first or second it becomes quite clear that the assailants could not be identified and thus time was required to make consultation as to who the assailants could be and after consultation on account of doubt the appellants and their companions were implicated. There is no evidence that on the roof on which the two appellants and their companions are alleged to be present and from where the two accused are alleged to have fired their guns, any lantern was present. According to the site‑plan the distance from the place where the deceased was hit and the roof where the two appellants are alleged to be present, is about 39 feet. According to the opinion of the doctor the fire was made not from close quarters but from within effective range of the particular weapon used. On a dark night the witnesses could not correctly identify the assailants from a distance of 40 feet. Learned State counsel has argued that since the eye‑witnesses very well knew the appellants before the occurrence as they belong to the same village the learned Sessions Judge rightly believed their evidence but I am afraid there is no force in this argument. The mere fact that the appellants were previously known to the witnesses is not sufficient to say that they had correctly identified them Because the distance was considerable and tire night was dark. Learned State Counsel has also said that as abuses were exchange d between the accused party and the witnesses, so the witnesses had a chance to identify them 1‑his argument also is devoid of force. By exchanging abuses faces cannot be seen in darkness and identified. Identification by voice is unsafe and cannot be relied upon. Since the assailants could not be identified this appears to be the reason that the report was not made soon. When in these circumstances this fact is considered that the report was not recorded at the Police Station, it becomes crystal clear that first of all the Police made preliminary inquiry to find out who could be the assailants and after that implicated the appellants and their companions. No doubt, the mere fact that report is not made at the Police Station is not sufficient in every case to come to a conclusion that F.I.R. was recorder after preliminary investigation but in the circumstances of the present case there is no other inference but only this that since the assailants had not been identified, the Police felt the necessity of making preliminary investigation. Before recording the F. I. R.
8. There is no corroborative evidence to show that in reality the eye witnesses had correctly identified the appellants. No doubt, guns were recovered but they were not connected with the commission of the offence. Since no crime empty was recovered by the Fire‑arm Expert with the result that there is no evidence that actually these two guns were used at the time of the occurrence. Since the Police asked Ishrat accused to bring his gun he had to produce it but would not mean that he had used this gun at the time of the occurrence. In the same manner since Ashraf accused was asked by the Police to bring a gun he brought the gun belonging to one Munir. The eye‑witnesses did not state nor could state that the guns Exh. P. 4 and Exh. P. 6 wore used by the appellants at the time of the occurrence. So, the production of these guns by the appellants cannot corroborate the ocular evidence. The result is that the prosecution failed to prove the case beyond any shadow of doubt and the learned Sessions Judge was not justified in convicting them. I accordingly accept the appeal and setting aside the convictions and the sentences acquit the appellants. It is necessary to point out that punishment of further imprisonment is awarded always in default of payment of fine and not in lieu of fine. Copy of the judgment be sent to the learned Sessions Judge for further guidance. The appellants be set at liberty forthwith if they are not required in any other case.
Appeal allowed.