MUHAMMAD AFZAL CHEEMA, J.-Sultan alias Sullah (35), caste Mallah, resident of Chak No. 466/J. B., Police Station Bhawana, District Jhang, was tried and convicted by the Additional Sessions Judge, Lyallpur, at Jhang, under section 302, P. P. C., for having murdered in his Dhari one Shera on 8-10-67, at about 9 a.m., in village Nikka Daultana, Police Station Sadar Jhang, with an award of sentence of death. He has appealed against his conviction and sentence and his case has also been referred to us tinder section 374, Cr. P. C., for the confirmation of death sentence. This judgment will dispose of the appeal as well as the Murder Reference.
2. This single accused case in which the venue of the occurrence namely the Dhari of the appellant remains undisputed does not appear to us to have been properly conducted, the record of the trial Court leaving much to be desired is the form of Court questions, cross-examination including also omissions on ' the part of the prosecution with the result that the truth still remains shrouded in mystery.
3. The relevant facts of the prosecution case briefly are that Sher deceased accompanied by his uncle Jiwan complainant, both residents of Chak No. 466/J. B. Of Police Station Bhawana, visited the Dhari of the appellant in village Nikka Daultana of Police Station Sadar Jhang, on the evening of 7-10-67, as the deceased had to settle certain accounts with him. All the three slept at the Dhari of the appellant. In the morning, however, the appellant and the deceased started verbal exchange of notes in regard to the settlement of accounts inside the Dhari while Jiwan complainant was sitting outside. An altercation ensued between Sher and Sultan and they exchanged abuses. Jiwan complainant proceeded to intervene and as he reached the door of the room, the appellant fired a Pistol shot at the deceased who was hit below the abdomen on the left side and fell on the cot The complainant went to village Khanuana to inform Sher son of Najabat P. W. 7, the sister's husband of the deceased, and sent him to Cha,k No. 466/J. B. To inform his other relations. Having done this, he returned to the Dhari of the appellant and stayed with the deceased who throughout remained in full senses. At about 6.00 p.m., when Daulat P. W. 8, Zulfiqar P. W.
9. Ahmad Hasan P. W. 10, all residents of village Chak No. 466/J.B, reached the spot, the deceased narrated to them that the appellant had injured him with a Pistol shot. He succumbed to the injury at about 9,110 p.m. In the night. Zulfiqar P. W. 9, and Ahmad Hasan P. W. 10, returned to their village Chak No. 466/J. B., to inform others while Jiwan complainant and Daulat P. W. 8, stayed with the dead body. On the following morning, i.e., 9-10-67, Allah Bakhsh Chairman of Chak No. 466/J. B., Lal son of Pathana, Member, Union Council and Bahadur son of Sajan, Sarbrah Lambardar of that Chak and some women-folk arrived at the spot and leaving them there Jiwan at long last repaired to police station Sadar, at a distance of 16 miles to lodge report Exh. P. A., which was recorded by Mukhtar Ahmad S. I., P. W. 12, at 9-30. The S. I., reached the spot at 12.00 noon, found the dead body of Shera deceased lying on a cot inside the Dhari of the appellant and after having prepared injury statement Exh. P. H., and Inquest report Exh. P. J., sent the dead body to the mortuary at Jhang under the escort of F. C., Ellahi Bakhsh P. W.
3. He took into possession a blood-staff:-.,.d white shirt and a pair of brown shoes belonging to the deceased vide memo Exh. P. B. These were produced by Daulat P. W. And the recovery memo was witnessed besides him by Allah Bakhsh P. W. 5, Chairman of Chak No. 466/J. B.
And Syed Ikkram-ul-Hasan of Nikka Daultana who did not enter the witness-box. The S.I., also took into possession cot. P. 5 stained with blood in the middle, blood-stained quilt---P. 3, and blood- stained khais P. 4, vide memo Exh. P. C. Attested by the same set of witnesses. The last-mentioned two articles were sent to the Chemical Examiner and were found to be stained with blood vide report Exh. P. L., which was found to be of human origin vide Serologists report Exh. P. M.
4. The appellant was produced before the Sub-Inspector by Mujahid Hussain, Sarbrah Lambardar on 10-10-67. On 10-10-67, he was brought to the Police Station and on 12-10-67, on interrogation, led to the recovery of the country-made Pistol containing a 303 live-cartridge P. 6/I from inside a maize field near his Dhari in killa No. 23 of square No. 108, under the cultivation off' hiss brother Muhammad., and was taken into posses--sion, vide memo Exh. P. D. There appears to be some confusion as to the Exhibit mark of the Pistol allegedly the instance of the appellant, which has been numbered as P. 11, in the recovery memo Exh. P.D. And as P. 5/P. 6 in the statement of Mukhtar Ahmad S.I. The recovery was witnessed by Allah Bakhsh Chairman P. W. 5, Humayun P. W. 6, both residents of Chack No.466/J B and Syed Mujahid Hussain Lambard ka Daultana, who did not enter the witness-box. It may be observed in this context that the Pistol and live cartridge sent to the ballistic Expert presumably because no empty was --recovered at the spot although the doctor had extracted a bullet during autopsy.
5. Autopsy was performed on the dead body of Sher deceased by Dr. Tajamal Hussain, Medical Officer, Civil Hospital, Jhang, on 10-10-67, at 8.00 a.m., The doctor found it to be a body of a middle aged man of moderate built. Regor mortis was present only at the lower limbs. Vide his post- mortem report Exh. P. D., the doctor found a fire-arm wound of entrance 2--" x --" x 9--", on the left side of abdomen in the lower part latero frontal aspect, above the iliac spine, of left hip bone. The wound was directed medially and downwards, ran in between the muscular layers of anterior abdomen and entered the left scrotal sack. The bullet eras lodged at the root of the penis in the middle line. Stomach was healthy and contained 2-- ounces of semi-digested food. Small intestines and large intestines were healthy and contained faecal matter. Bladder was healthy and contained three ounces of urine. Injury was caused by a fire-arm and was sufficient in the ordinary course of nature to cause death. The bullet was extracted by the doctor and was sealed into a bottle P. 10, which was handed over to. Ellahi Bakhsh F. C., along with the vest P. 7, Chaddar P.
8. And a ring P.- 9. Removed from the person of the deceased. These were taken into possessions by the Sub-Inspector ride memo Exh. P. G., probable time between injury and death was about 12 hours and between death and post-mortem about 48 hours.
6. After completing, the investigation, Mukhtar Ahmad S. I., sent up the appellant on charge of murder. Both before the Committing Magistrate as well as at the trial the case of the appellant was that of denial simpliciter. At the trial, however, in answer to a question as to why this case was brought against him, he made the following statement: - "Shera came to the village to see Ghulam and Muhammad, where he was having a chat with many a persons sitting in the kotha. He placed his Pistol on a chouki in front of the cot where a man in the gathering took up and the triger went off by chance. Then he died when any of his relatives was not present there Later on Jiwan suggested that on account of the death of Shera his enemies should be involved. I refused to accede to his request and he was annoyed and lodged this report against me."
6-A. The only defence offered by the appellant was in the form of judgment of Syed Ahmad Salim Hussain M. I. C., Jhang dated 30-4-68, Exh. D. A., purporting to show that Hasan and Sher, the two brothers of the appellant, were apprehended by Mukhtar Ahmad Sub-Inspector on 3-11-67. Hasan was sent ul under section 13 of the Arms Ordinance, but was acquitted by the Magistrate on 30-4-
68. It was presumably suggested thereby that the S. I., was inimical to the family.
7. Placing full reliance on the testimony of Jiwa, the solitary witness of the occurrence, coupled with the recovery of the pistol at the instance of the appellant, supported by the state--ments of Daulat P. W. 8, Zalfiqar P. W. 9, and Ahmad 1-lasan P. W. 10, and further corroborated by the admitted recovery of the dead body of the deceased from inside the Dhari of the appellant, the learned trial Judge came to the conclusion that the offence had been .Fully brought home to the appellant and, accordingly, convicted him with award of capital punishment.
8. Learned counsel for the appellant raised the following contentions before us:--
(1) That there was an inordinate and unexplained delay in the lodging of the F. I. R.Which cast serious doubts on the veracity of the prosecution version.
(2) That Jiwan complainant made definite improvement at the trial on his police report.
(3) That the so-called recovery of the Pistol was a sheer fabrication and, even otherwise, had no evidentiary value.
(4) That the testimony of Daulat P. W. 8, Zulfiqar P. W. 9, and Ahmad Hasan P. W. 10, purporting to lend support to the so-called dying declaration of the deceased, being thoroughly divergent and inconsistent could not be believed.
(5) That the learned trial Judge had erred in drawing an adverse presumption on the basis of the so- called abscondence of the appellant.
We now proceed to deal with the aforesaid contentions.
9. The first contention relating to delay in the lodging of report has obviously lot of force. The occurrence admittedly took place at 9.00 a.m., on 8-10-1967, and the case was not registered till 9- 30 a.m., on the following day. No doubt the police station was situate at a distance of sixteen miles away but the spot lay only two squares away from the Jhang-Chiniot metalled road on which buses plied quite frequently. It was admitted by Allah Bakhsh P. W. 5 that he sent Jiwan to lodge the F. I. R., who caught a bus. Soon after the occurrence Jiwan complainant went to village Khanuana, at a distance of about 1-- mile from the spot, and sent Sher P. W. 7 brother-in-law (sister's husband) of the deceased to inform his family members in Chak No. 466, at a distance of about ten miles (seven kos). The village of Shera P. W. 7 is, from his own showing, situated near the metalled road going from Jhang to Chak No, 466 and yet we find that he reached there only at peshi wela. On receipt of information, regarding the occurrence, Zulfiqar P. W. 9 brother of the deceased, Daulat P. W. 8 and Ahmad Hasan P. W. 10 left the village and reached the spot at about sunset time passing through Bhawana Police Station without lodging a report regard--ing the occurrence which, of course, pertained to the jurisdiction of Police Station Jhang Sadar. What is more surprising, however, is the fact that even on reaching the spot and finding the deceased in a precarious condition, who succumbed to the injury soon thereafter at 9.00 p.m., nobody thought of lodging the report which had already been much delayed. This is not all. Even after the expiry of Shera at about 9.00 p.m., it does not appear to have been considered necessary by any of his relation or other persons present at the spot to report, the matter to the police as soon after his death as possible. Obviously, lot of room was left for conference end consultation and the inordinate delay which has not been satisfactorily explained puts one on the guard calling for particular circumspection and cautiousness. In fact, having considered the evidence on the record, one cannot but notice a consistent streak of unnatural conduct of the P. Ws. Running through the prosecu--tion version. It was stated by Ahmad Hasan P. W. 10 in his cross-examination that there were at least five kothas near the spot. Jiwan complainant also admitted that he had seen the father of the appellant along with two or three persons at the Dhari but he could not say whether they were his brothers. Mukhtar Ahmad Sub-Inspector P. W. 12 admitted that the accused and his father lived in those kothas and the Dhari of his brother Muhammad was adjacent to the spot and yet we find that none of them came to the spot either at the time of occur--rence or at the time of the death of Shera deceased. Again, the conduct of Jiwan, the solitary eye-witnesses of the case, is rather unusual in that he did not raise an alarm and on reaching village Khanuana did not ask anybody to accompany him to the spot or to inform the police. Sher P. W. 7 admitted that his brother Allah Yar was present in the village on that day and there were also other members of Khanuana tribe to which the deceased belonged and yet he quietly proceeded to Chak No. 466 without caring to sent any body to the spot. Jiwan does not appear to be in the least bothered about the removal of the deceased to the hospital and remained contented to give him fomentation, thus allowing him to die by excessive loss of blood. He ran the risk of leaving him alone in a precarious condition in the midst of , persons who could easily have made a short shrift of him and could even possibly have caused the disappearance of the dead body. Then, again, on receipt of information at the hands of Shera, Daulat, Zulfiqar and Ahmad Hasan P. Ws. Started for village Nikka Daultana and yet nobody bother to inform his mother or sister two of whom were married in the same Chak. What is all the more baffling, however, is that having reached the spot, none of these persons thinks of his immediate removal f to the hospital which, normally, should be first and foremost concern of his relations in such circumstances. Zulfiqar brother of Shera deceased admitted in cross-examination that there was a hospital in village Khewa only two miles away from the metalled road and yet it did not occur to anybody that the deceased should be immediately removed or that the police should be informed. Zulfiqar stated during cross- examination: - "We did not send any person to village Khanuana when Shera died. Khanuana is at a distance of one mile and is connected by a Pacca Road . . . . . . We did not try to bring Shera to the Hospital."
Likewise, Ahmad Hasan P. W. 10 stated in cross-examination.
"We did not try to ask the mother and the sister of the deceased to accompany us. We did not arrange for any medical aid . . . . . . . .None from village Khanuana came there so long as I remained there. Nobody came to us to ask us not to lodge the F.
1. R., I did not advise them to go to the police.
Similarly, Daulat P. W. 8 deposed as follows: -- "We came to the Dhari of Sultan. None of the persons from village Nikka Daultana was there at the Dhari of the accused.
We did not try to inform the sisters of Sher about this incident . . . . . . .None else was with us, so I and Jiwan stayed near the dead body and then Jiwan was sent to the Police Station. We feared that somebody may not take away or destroy the dead body. Sultan accused and his father lived near that Dhari and we did not see any other person living there. We did not try to bring Sher to the hospital because we had no conveyance . . . . . . . . . We tried to bring persons from village Khanuana and almost every person from that village came there. The persons from village Khanuana reached there at morning and none came there at night."
Obviously, all this has to be taken with a grain of salt. Ordinarly news of such occurrences spread like wild fire in the villages and people would simply rush to the spot on learning about it and yet nothing of the kind happened. All this goes a long way to suggest that none of the persons had actually seen the occurrence and that the P. Ws. Reached the spot sometime after the death of Sher deceased. . Since admittedly the dead body lay inside the Kotha of the appellant, who impliedly appears to have admitted his presence in the suggested plea of defence that the Pistol accidently went off, it should not have been difficult to name him as the assailant in the much belated report.
8. But, assuming, that Jiwan had accompanied the deceased to the Dhari of the appellant, and had seen the occurrence, it cannot, be denied that the object of the visit, namely the settle--ment of the account of the deceased with the appellant was left vague enough in the F. I. R., to be further elaborated by him at the trial when a specific sum of Rs. 700 was stated to be due from the appellant to the deceased on account of the price of an ox and a cow. To that extent the improvement is there with which the complainant was duly confronted. According to Jiwan complainant, the two animals had been purchased by the appel--lant from the deceased about six months prior to the occurrence for a sum of Rs. 700. According to Zulfiqar P. W. 9 the cow and the ox belonged to him and the deceased, whereas according to Daulat P. W. 8 it was not a case of outright sale but the two animals were borrowed by the appellant in the first instance who later promised to pay their price. The reason given by Jiwan is not disclosing the details in the F. I. R., however, was that at that time he was not in his proper senses.
9. Coming now to the next contention relating to the recovery of the Pistol at the instance of the appellant, we have no hesitation in saying that, firstly, the evidence of recovery is not convincing and, secondly, that even otherwise, there is noth--ing to show that the same Pistol had been used as the weapon of offence as it was never sent to the Ballistic Expert as perhaps it was no use doing so. Significantly enough, Dr. Tajammal Hussain, who performed the post-mortem examination, and described the injury as a fire-arm wound of entrance, was never questioned as to whether it could possible be caused by a Pistol or in particular, the Pistol in question. His statement before the Inquiry Magistrate was transferred to the Sessions file under section 509, Cr. P. C. In view of this we find that the recovery is not possessed of any corroborative evidentiary value. In fact, our scepticism regarding the genuineness of the recovery has proceeded on three considerations.
Firstly, there has been considerable delay in the recovery, since after the appellant's arrest on 10- 10-1969, the time-lag being quite material. Accord--ing to Mukhtar Ahmad, Sub-Inspector, the appellant was arrested on the 10th when he was produced before him by Mujahid Hussain Sarbrah Lambardar, one of the recovery witnesses, who did not enter the witness-box. He was brought to the Police Station on 11th and led to the recovery namely, Allah Bakhsh P. W. 5 and Humayun P. W. 6, both being Khanuana by caste, belonged to the brotherhood of the deceased, living ten miles away from the scene of occurrence. Syed Mujahtd Hussain Lambardar of Nikka Daultana, who also joined the investigation, was withheld by the prosecution, there being nothing on the record to indicate that he was won-over. Thirdly, there are some discrepancies in the statements of Allah Bakhsh and Humayun as to how and when did they, join the investigation of the case and witnessed the recovery of the Pistol. According to Humayun P. W. 6, he along with Allah Bakhsh Chairman went to the Police Station on 12-10-1967, to find out the progress of the investigation and from there at the instance of the Police they accompanied them to the spot by bus. On the contrary, the version of Allah Bakhsh is that on 12-10-1967, he went to Jhang in the first instance in order to see his brother who was a student in a school and from there he alone proceeded to village Nikka Daultana. Of course, he admitted that Humayun and Mujahid Hussain were also present at the time of recovery. The upshot of the discussion, therefore, is that we do not attach much importance to the evidence of recovery which does not carry conviction.
10. Coming now to the testimony of Daulat P. W. 8, Zulfiqar P. W. 9 and Ahmad Hassan P. W. 10, who claim to have reached the spot when Shera deceased was still alive and heard the version directly from the horse's mouth as it were, we have already held in the earlier part of the judgment that their assertion is not free from doubt. The relevant observation made by Daulat P. W. 8 is confined only to one sentence which is as follows:-- "Shera deceased was in his proper senses at that time. He told us that Sultan accused had fired a Pistol at him."
On the other hand, Zulfiqar P. W. 9 elaborated it as follows: - "He told us that he and the accused were settling accounts and exchanged abuses and the accused fired his Pistol at him and that Jiwan was sitting outside the Dhari."
Ahmad Hasan P. W. 10 narrated this in the following terms "Shera told us that he had a dispute about the recovery of money and the accused had injured him with his Pistol."
It is well-settled that in evidence of this nature, the prosecution should bring on the record of the precise expression used by the deceased which has not been done. These witnesses reached the spot, from their own showing, around sunset time, which would be in the neighbourhood of 6.00 p. m. The deceased succumbed to the injury a couple of hours later. Unfortunately, the doctor was not questioned by the defence as to whether keeping in view the seat of injury; its direction, the extent of damage and the excessive loss of blood, the deceased could still be in a position to make a statement about 9/10 hours after he had received the injury and a couple of hours before he expired. The direction of the wound being medially and downwards running in between the muscular layers of anterior abdominal walls clearly indicated that the assailant was at a higher level than the victim as rightly observed by the learned Sessions Judge found the medical evidence to be in full accord with the ocular evidence. The direc--tion of the wound does not appear to us to have been satisfactorily explained by the eye-witnesses and is, in our view another doubtful circumstances which could not be lost sight of.
11. Lastly, we come to the adverse presumption drawn b the learned Judge on the basis of the so- called abscondence of the appellant. The case was registered on 9-10-1967, and the appellant was produced before the Sub-Inspector on the following Sup morning by Mujahid Hussain Sarbrah Lambardar. It is common v, knowledge that more often than not even an innocent accused named in the F. I. R., would be rather hesitant to immediately M. Surrender himself to the police and would instead seek the good Ch offices of an influential person to produce him in the hope of being spared the use of third degree methods by the police. In the circumstances, therefore, no adverse presumption could b raised against the appellant on this score with any amount o certainty.
12. In his plea of defence, the appellant impliedly admitted his presence at the time of the visit of the deceased. The plea of the pistol having accidentally gone off was suggested to the P. Ws. And to some extent explains the recovery of the dead body from inside the Dhari of the appellant; with blood-stained clothes. However, it is well-settled and rather platitudinous to say that the onus of proving its case lies heavily on the prosecution which as stated at the outset has left much to be desired. The unexplained delay in the lodging of the F. I. R., coupled with the wholly inexplicable conduct of the P.Ws. To show any anxiety to remove the injured deceased to the hospital, the failure of the members of his brotherhood from village Khanuana to reach the spot immediatly from a short distance are circumstance which go a long way to indicate that the real facts of the case are shrouded in mystery which the prosecution has neither taken pains to unearth nor has it other--wise completely succeeded in unravelling. The ocular evidence of Jiwan and that of the witnesses of the so-called Dying Declara--tion having been found to be rather doubtful, conviction cannot be based alone on the circumstantial evidence of the recovery of the dead body from the Dhari of the appellant, who in our view, is entitled to the benefit of doubt.
13. The upshot of the discussion, therefore, is that the appeal succeeds and the sentence of death is not confirmed. The appellant should be released from jail, if not required in any other case.