Z. A. CHANNA, J.----By a judgment delivered on 30th August, 1977, a learned Additional Sessions Judge, Jacobabad, convicted both the appel--lants herein of an offence under section 302 read with section 34, P. P. C., for committing the murder of Abdul Jabbar and while he sentenced appel-- lant Nadir to death and also to pay a fine of Rs. Fifteen hundred or in de--fault to suffer R. I. For one year, appellant Mohammad Rahim was sen--tenced to transportation for life since the said sentence had not been sub--stituted for imprisonment for life when the murder of Abdul Jabbar was committed. Appellant Nadir was also tried in respect of an offence under section 13 (d) of the West Pakistan Arms Ordinance, 1965, but was acquitted of the said offence. Both the appellants have appealed against their convictions and sentences and also the case of appellant Nadir has been referred to this Court by the learned Additional Sessions Judge for confirmation of the capital sentence awarded to him. By our short order dated 5th March 1978, we have set aside the convictions and sentences of the appellants and accepted their appeals. We now proceed to give our reasons in support of the said order.
2. Appellant Mohammad Rahim is the uncle of deceased Abdul Jabbar while appellant Nadir Hussain is the son-in-law and the sister's son of appellant Mohammad Rahim. Despite the fairly close relation--ship between the appellants and the deceased, the relationship between them was strained on account of numerous disputes over land and cases filed by one party against the other. The incident resulting in the death of Abdul Jabbar occurred on 30th June 1973, at about 11- 08 a.m. It is alleged that the deceased on that morning had taken his goats for grazing to the jungle some 3 furlongs away from Haji Misri Khan Khoso village. At about 10 or 11 a. m. The villagers heard two fire-arm reports from the direction where the deceased was grazing his goats.
Thereupon, his two brothers, Daulat and Hamzo, and their cousin, Mir Mohammad, ran towards the direction from where the fire-arm reports had been heard. 1t is alleged that when they came near Yar Wah they saw the two appellants running away towards the village. Appellant Nadir had a rifle while appellant Mohammad Rahim had a double barrel gun. On reaching the banks of Yar Wah, first informant Daulat and his companion found Abdul Jabbar lying on the ground with a fire-arm injury on the left leg below the thigh. It is stated that he was in his senses and he informed them that the two appellants had come to him in search of their goat which they claimed was missing, but despite his denial that their goat was not in his flock, they tried to drive away his flock of goats, where--upon he protested and resisted this action on their part, upon which appellant Mohammad Rahim fired at him from his gun, but the shot missed him, and thereafter appellant Nadir fired from his rifle at him and the shot hit him in the thigh. The F.I.R. Of the incident was lodged two hours later, at 1-00 p. m. By Daulat Khan at the Saddar Police Station, Jacobabad.
3. The F. I. R. Was recorded by A.S.I. Abdul Ghafoor, who, thereafter, recorded the statement of inured Abdul Jabbar who had been brought to the Police Station in a Jeep. The injured was then referred to the Medical Officer, Civil Hospital, Jacobabad, for examination and treatment. However, he died the same day at the hospital. That very day at 5-30 p. m. a counter-report was lodged with A.S.I.
Abdul Ghafoor by appellant Nadir at the Civil Hospital, Jacobabad, where this appellant who had injuries on his person, had come for treatment. The scene of offence in that F.I.R: is alleged to have been the house of appellant Nadir.
4. On 1st July 1973, A.S.I. Abdul Ghafoor prepared mashirnama of the scene of offence in this case, recorded the statements of Hamzo Khan and Mir Mohammad and arrested the two appellants, who were challaned upon completion of the police investigations.
5. The medical evidence revealed the following external injury upon the deceased.
"Lacerated fractured type of wound --' in diameter x Peritoneal cavity on upper part of left thigh laterally with slight charring of margins present above 1--' below left crest."
6. According to Dr. Krishanlal, who had examined the deceased, the above injury appeared to have been caused by a discharge from a fire--arm and was dangerous to life. The Medical Officer has testified that one big pellet was recovered from the injury of the deceased. The witness at one sage stated that the injured throughout was unconscious but later corrected himself by saying that he was not unconscious but restless. He admitted that he have had no talk with the deceased nor the police had approached him for getting the dying declaration of the injured recorded. He further stated that he had asked the police to arrange for having the dying declaration of the deceased recorded but before this could be done the patient died.
7. The main evidence against the two appellants is provided by first informant Daulat Khan and P.
Ws. Hamzo and Mir Mohammad. They have testified to two separate pieces of incriminating evidence against the appellants. The first is that they had seen the two appellants near about the scene of offence, armed with a gun and a rifle, running towards their village. The second is the dying declaration said to have been made in their presence by the deceased at the scene of offence wherein the deceased had implicated both the appellants and had specifically stated that the shot which hit him had been fired by appellant Nadir while the shot from the gun fired by appellant Mohammad Rahim had missed him. We, however, are unable to place any reliance on either limb of the evi--dence of these witnesses. First informant Daulat Khan has admitted that the scene of offence was about 3 furlongs from his village. No satisfactory explanation has been given by the witnesses why on hearing the gunshots from such a distance they should have run towards the scene of offence. Again, if the firing of the guns presented some dangerous mishap, then other villagers also should have gone to the scene of offence, but we find that only these 3 witnesses, who are closely related to the deceased, had gone to the scene of offence and not others. Even if we were to accept the word of these witnesses that they had gone to the scene of offence, they must have taken at least 5 to 7 minutes to reach the scene of offence and it is unlikely that the culprits who fired at the deceased would have tarried so long at the scene of offence after firing the two shots. There are also serious contradictions between the testimony of the witnesses on this point which strengthen the doubts which we entertain that they had seen or identified the culprits.
According to the first informant, Daulat, he was unable to recollect who from the appellants was armed with a rifle and who was armed with a gun. Furthermore. According to this witness, they had merely seen the backs of the appellants and had identified them from their walk and their clothes.
On the other hand, P. W. Hamzo, another brother of the deceased, who, nevertheless was declared hostile, stated that they had seen the appellants from a distance of 1 to II- furlongs and that they had identified them due to their walk and clothes. His evidence as to the distance from which they had seen the appellants, is in material contradiction with that of first informant Daulat, who stated that they had seen the appellants from a distance of about 50 to t0 paces. Similarly, P. W. Mir Mohammad has stated that they had seen the appellants from a distance of one furlong. We find it difficult to believe that from such a distance they could have identified the culprits who were running away and had their backs towards them. Reference may also be made to the evidence of P. W. Mir Mohammad according to whom P. W. Daulat had reached the scene of offence half an hour after their arrival there.
8. As to the dying declaration said to have been made by the deceased to the witnesses at the scene of offence, there is again contradiction between the testimony of first informant Daulat and Mir Mohammad on the other hand and P. W. Hamzo Khan on the other. While P. W. Hamzo has stated that when they reached the scene of offence deceased Abdul Jabbar was unconscious and did not talk to them, first informant Daulat and P. W. Mir Mohammad have given details about the dying declaration said to have been made to them by the deceased. Looking to the nature of the injury sustained by the deceased which included the fracture of both the pelvic bones at pubic symphysis and the laceration and puncturing of the peritoneum, the small intestines and the pelvic colon and the loss of blood which must have resulted from these injuries, it is difficult to believe that the deceased could have been conscious or in a position to make a lengthy statement attributed to him.
9. There are four other circumstances which cast grave doubt on both limbs of the testimony of the above 3 witnesses. The first is that there was a long history of enmity and cases between the parties. First informant Daulat has admitted that Muhammad Saleh, the paternal, uncle of the appellant Nadir, had filed a civil suit against the father of the deceased and the first informant in regard to a dispute over land. He has further admitted that he bad filed a theft case against the Haris of appellant Muhammad Rahim. Another case under section 307, P. P. C. Was filed by the first informant against Sher Muhammad, brother of appellant Nadir, in which the accused were acquitted. There was still another case relating to the murder of one Kehar in which the Haris of appellant Muhammad Rahim had been challaned. In that case, Ghulam Hussain, the uncle of the first informant, was the complainant. . In view of this history of long-standing hostility between the parties, the evidence of the first informant and his witnesses has to be viewed with extreme caution and suspicion.
10. The next circumstance which casts doubt upon the testimony of the above witnesses is that none of them have explained how gunshot injuries were sustained by appellant Nadir. In fact, all of them have vehemently denied that the deceased was either armed with any weapon or he had caused any injury to appellant Nadir. We have it, however, from the evidence of the Medical Officer that the following fire-arm injuries were found on the person of appellant Nadir, which were fresh and caused within 12 hours: (1)Lacerated punctured type of wound 1/6' in diameter bone deep with blackening of margins at left elbow anteriorly.
(2)A lacerated punctured type of wound about 1/6" x 1/6" x bone deep, left forearm about --' apart from the first injury blackening of margins."
11. The Medical Officer has further testified that X-ray of the left forearm and elbow of appellant Nadir was taken which showed fracture of left radius with 9 pieces of metallic bodies. The presence of these injuries on appellant Nadir seems to support his version as contained in the counter report that the appellant had been fired upon by the com--plainant party.
12. Another circumstance which generates doubt in our mind is the nature of the injury on the deceased, It is the case of the prosecution, the F. I. R., the evidence of the witnesses and the dying declaration of the deceased, that the injury sustained by the deceased was in consequence of a rifle shot fired at him which had struck him. The dimension of the injury on the deceased, however, was only --" in diameter, suggesting that it was caused by a pellet and not with a bullet which would have caused an injury of much greater dimensions. Furthermore, according to the Medical Officer, a pellet was recovered from the injury and not a bullet. An attempt was made to show that this was not a pellet but a part of a bullet, but the attempt in our opinion, was unsuccessful. If it was a part of a bullet then what happened to the rest of the bullet and under what circumstances did the bullet break into fragments or parts.
13. Lastly, we find it difficult to believe that the deceased, who was a Zamindar and a man of substance, as admitted by the first informant, would have taken out goats for grazing, specially as the first informant and his brothers had a regular grazier, as admitted by P. W. Mir Muhammad.
14. The next piece of evidence against the appellants is the dying declaration of the deceased recorded by A. S. I. Abdul Jabbar. This dying declaration, however, was neither recorded in the presence of the doctor nor does it bear the signature or thumb impression of the deceased. We have already referred to the evidence of P. W. Hamzo, the brother of the deceased that at the scene of offence the deceased was unconscious. The evidence of the Medical Officer, to whom the deceased was sent immediately after the lodging of the F. I. R., also shows that after his admission to the hospital, the deceased was not in a position to make a statement till a short time before his death. The alleged dying declara--tion recorded by the A. S. I., therefore, does not inspire confidence. Furthermore, it is in conflict with the medical evidence. According to this declaration, the deceased was hit by a rifle shot but the nature of the injury on the deceased and the recovery of a pellet from the injury clearly indicate that he was hit by a gunshot and not a rifle shot. This would, therefore, suggest the inference that the deceased was not aware with what weapon he had been shot, assuming that he did make a dying declaration either to the witnesses `or to the police. If the witness was not in a position to say that with what weapon he was fired at, it i: unlikely that he should have seen or identified his assailants. We, therefore, are of the view that no reliance can be placed on the dying declaration, moreover, as it gives no indication, how appellant Nadir sustained gunshot injuries.
15. Lastly, there is against the appellant the counter-report filed by appellant Nadir. In that report, appellant Nadir has no doubt admitted that he and appellant Muhammad Rahim had fired at the complainant party, but he has stated that they did so in self-defence as the complainant party had first fired on them and caused gunshot injuries to him and moreover the firing was not at the banks of Yar Wah as alleged by the complainant party, but inside his house, where the police party found marks of gunshots. This counter report thus does not incriminate the appellants at all and on the other hand makes out for them a clear case of right of private defence. In any case, this counter report lends no support to the entirely different version of the prosecu--tion witnesses.
16. In view of the above infirmities in the case, the learned counsel for the State frankly concedes that he was unable to support the conviction of the appellants.
17. For the reasons state by us above, we are of the opinion that the prosecution have failed to establish the guilt of the appellants. We would accordingly accept the appeal of the appellants