1. ' NASIM HASAN SHAH, J.-This is a petition for Special Leave to Appeal against the judgment dated 24-11-1975 of the Lahore High Court in Criminal Appeal No, 16 of 1975 and Murder Reference No, 2 of 1975 sentencing the appellant, Muir Abdullah to death under section 302, P. P. C.
2. ' The appellant was tried for committing double murder, viz. The murder of his real brother Mian Muhammad and that of his sister-in-law Mst. Kaniz Fatima (wife of Mian Muhammad). He was convicted under section 302, P. P. C. On the said two counts by the learned Additional Sessions Judge, Sargodha vide his order dated 23-11-1974 and sentenced to death on both counts. On appeal and reference a Division Bench of the Lahore High Court upheld the verdict of the Additional Sessions Judge, dismissed the appeal and confirmed the sentence of death vide its judgment dated 24-11-1975.
3. ' The appellant submitted a petition through jail in this Court against the said judgment of the Lahore High Court and a Bench of this Court granted him leave to appeal.
4. ' Briefly the prosecution case is that the appellant, Amir Abdullah murdered his real brother Mian Muhammad and his wife Mst. Kaniz Fatima on 17-4-1973 at about 10/11 a. m. At a distance of 17 karams from the abadi of Village Shahzadpur, Tehsil Shahpur, District Sargodha. The F. I. R. Was lodged by Mst. Fateh Bibi, mother of the deceased /list. Kaniz Fatima at about I p. m. At Police Station Saddar, Shahpur, which is at a distance of six miles from the place of occurrence on the same day, 1. e. 17-4-1973.
5. ' The motive alleged is that the appellant suspected his sister-in-law Mst., Kaniz Fatima to be of loose character, and, therefore, was pressing his brother Mian Muhammad to get rid of her her selling her off which his brother Mian Muhammad declined to do.
6. ' The occurrence was said to have been witnessed by three persons, namely, (1) Ramzan, father of the deceased Mst, Kaniz Fatima, (2) Mst. Fateh Bibi, P. W. 8 mother of the deceased, Mst. Kaniz Fatima and (3) Mumtaz Ahmad son of Jana, P. W. 9, out of whom only Kaniz Fatima and Mumtaz Ahmad were produced. The plea of the appellant was that his brother Mian Muhammad had earlier murdered five persons of Feroze's party, but was acquitted by the High Court and some relatives of Feroze, therefore, had killed Mian Muhammad and his wife.
7. ' The learned Additional Sessions Judge, Sargodha in convicting the appellant relied upon the testimony of both the eye-witnesses, namely, Mst. Fateh Bibi, P. W. 8 and Mumtaz Ahmad P. W. 9, the dying declarations of Mst. Kaniz Fatima, Exh. P. R. (allegedly made before a Magistrate) and Exh.
8. P. V. (allegedly made before the police) and the evidence of motive. The learned Judges of the Lahore High Court, on appeal, did not accept the testimony of Mst. Fateh Bibi (P. W. 8) holding that her presence at the place of occurrence was doubtful. The learned Judges also did not find that the motive was probed. However, relying on the testimony of Mumtaz P. W. And the corrboration furnished thereto by the dying declaration made by the deceased, Mst. Kaniz Fatima before the Magistrate (Exh. P. R.) upheld the conviction and sentence.
9. ' This Court granted leave to appeal to consider whether the High Court was right in relying upon the evidence of P. W. Mumtaz Ahmad in view of the fact that his testimony was in conflict with the medical evidence and also whether the dying declaration (Exh. P. R.) which was recorded by a Magistrate could be relied upon in view of the fact that the doctor, who had issued a medical certificate (Exh. P. C.) to the effect that Mst. Kaniz Fatima was in a fit state to make a statement, was not examined.
10. ' We have carefully gone through the medical evidence and the statement made by Muhammed Ramzan P. W. 9 at the trial and find that the distance from which the deceased were fired from as decipherable from the medical evidence runs completely counter to the ocular account given by Mumtaz, P. W., on the point as to the distances from which the deceased were fired at by the assailant. According to the medical evidence, as is evident from the perusal of Injuries Nos. 5 and 6, as set out in the post-mortem examination of Mian Muhammad, there was a lacerated wound 1/3" x 1/3" x chest cavity deep on the left side of the chest, 11/4 above the left nipple Tattooing was present." Similarly, there was a lacerated wound 1/3" x1/3" x chest cavity deep on the left side of the chest, lateral and above the Injury No, 5 and tattooing was again present. This indicates that Mian Muhamman was fired upon from a distance of 3/4 feet whereas according to Mumtaz P. W. He was fired from a distance of 13/14 karams, i. e. From 70/80 feet. Again, the medical evidence shows that Mst. Kaniz Fatima must have been fired from a very short distance as one of her injuries, namely, Injury No, 1/A was a lacerated wound 11/2 x 11/2 on the back of left hand at middle and lateral part, the edges were scorched. Similarly, Injury No, 2/B shows five lacerated wounds of different sizes on the area of 2 1/2 x 2" on the palmer surface of the left hand starting from the wrist joint to the middle of left} hand. However, according to the testimony of Mumtaz, she was fired B from a distance of about 10/12 karams 1. e. From 55 to 60 feet. This aspect) was noticed by the High Court as follows :- "It was contended that the tattooing and scorching around the injuries and the presence of wad under Injury No, 2/B referred above, was indicative of the fact that both the deceased persons were fired at from a close range, therefore the statement of Mumtaz P.W. Was not entitled to any credit.
11. The scorching and tattooing around the wounds and presence of wad in one of the injuries, no doubt, shows that both the deceased persons were fired from a close range but this fact will not be sufficient by itself to discard the testimony of Mumtaz P. W. Altogether. He saw the occurrence from a distance of 36 karams and in the confusion of the attack it may not have been possible to observe the distance correctly. This witness is a resident of village Shahzadpur where the occurrence took place and had absolutely no motive to falsely implicate the appellant in a heinous crime like murder."
12. It is true that Mumtaz P. W. Does not appear to have any motive against the appellant but we think that it is quite clear from the record that he was not present at the scene of the occurrence. Not only because of the grave conflict that existed between the account furnished by him and the position that appears on examining the medical evidence but also because of some other circumstances as well which make his assertion that he was at the spot rather doubtful. We find that his name is not mentioned in the F. I. R. By Fateh Bibi, P. W. 8, although according to him he met her at the spot. Nor is his name mentioned in the Inquest Report as being present on the spot.
13. Taking all these circumstances into account we think that it will not be safe to place any reliance on his testimony.
14. The only piece of evidence which then survives for consideration is the dying declaration, Exh. P. R.
15. The. Magistrate, Mr. Shamshad Ali Khan Sial, P. W. 5, who recorded the statement deposed that before starting to record her statement, the Doctor gave a certificate, Exh. P. C. To the effect that she was in a fit condition to make a statement. The Doctor was, however, not produced to prove the said certificate. But, in the circumstances, this omission is not important because the Magistrate has stated that before recording the statement he satisfied himself that she was in a position to make a statement and was in her full senses. Be that as it may we do not think that in the circumstances D of this case it would be safe to rest the conviction of the appellant on thisi solitary piece of evidence. In the background of hostility between the parties when the appellant was pressing his brother Mian Muhammad to sell off Mst. Kaniz Fatima and there was a quarrel between them on this issue, the dying declaration of the latter that the appellant had fired at her and at her husband cannot in the interests of the principles of dispensation of justice be regarded as sufficient to rest the conviction of the appellant.
16. ' The result is that this appeal must succeed. The judgment of the High be Court dated 24-11-1975 is accordingly set aside and the appellant ordered to set at liberty if not wanted in any other case.