1. NASIM HASAN SHAH, J.-This appeal by right, under Article 185(2xc) of the Constitution of Pakistan is directed against the judgment of the Lahore High Court, dated 10th. Tune, 1978, in Criminal Appeal No. 922 of 1972, where by the order of acquittal dated 13-6-1972 passed by the learned Sessions Judge, Rawalpindi was reversed so far as the four appellants arc concerned and they were convicted inter alia under section 302/34, P. P. C. Muhammad Afzal, son of Muhammad Akram (appellant No. 2) was Bakhsh son of Qaim Khan (appellant No. 1), No. 3) and Allah Bakhsh, son ofskander (appellant No.1)Muhammad Bakhsh were sentenced to lie imprisonment.
2. The facts stated are night between 3rdy and 4 September, 1969, mere precisely at 1-30 a. m. On 4th September, 1969, Hayat Bakhsh allegedly armed with a pistol, and the other accused along with one Muhammad Hanif son of Muhammad Hussain armed with deadly weapons like pistols, guns and at this, entered the court yard of Abdullah, deceased, Situated village Jelhari Gojri, within the jurisdiction of Police Station, Mandra, District Rawalpindi and in prosecution of the common object of their unlawful assembly murdered Muhammad Nawaz, kidnapped Muhammad Abdullah and later also murdered him.
3. The motive for the offence was stated to be that Mst. Muniran, daughter of Abdullah, deceased, was married to Hayat Bakhsh, appellant. Being annoyed with her husband, she had returned to her father's house. Consequently, Qaid Khan father of Hayat Bakhsh went to Abdullah's house to fetch her back. Abdullab, however, was not agreeable and there was exchange of hot words between the two and Abdullah even slapped Qaid Khan. To avenge this insult upon his father Hayat Bakhsh along with Muhammad Afzal, Allah Bakhsh, son of Sikander, Allah Bakhsh son of Muhammad Hanif went to the house of Abdullah, deceased at 1-30 a. m. On 4th September, 1969, while he wasth sleeping inside while his wife Mst. Ravel Jan (P. W.) was sleeping in the courtyard of the house. On hearing report of fire shots Mst. Ravel Jan got up and saw Muhammad Afzal standing towards the head of her bed holding a gun and Hayat Bakhsh accused armed with as pistol was standing along the corner of the wall. Allah Bakhsh, son of Sikandar had a sonwith him. Allah Bakhsh son of Muhammad Bakhsh and Muhammad Hanif, accused, were also present but were empty-- handed.
4. On her alarm and the notice of the fire shots, her brother, Muhammad Nawaz deceased, who was residing in the adjoining house reached the spot. Muhammad Alzal and Hayat Bakhsh accused fired at him with their respective weapons. On receipt of pellet injuries, Muhammad Nawaz fell on the ground. Meanwhile, Allah Bakhsh caught hold of his legs and dragged him out of the house.
5. Muhammad Afzal and Hayat Bakhsh accused fired shots. The alarm rose by Mst. Hayat Jan and the sound of the fire-shots also attracted Gul Dad, and Muhammad Rafique (P. Ws.) to the place of occurrence. In their presence the accused persons succeeded in carrying away Abdullah deceased. Muhammad Nawaz was then taken to Police Station, Mandra, in injured condition where his statement Exh. The Moharrar A. S. 1 recorded P.J at 5-30 a. m.. Abdul Ghafoor. He allegedly signed this statement. The Police Officer also prepared his injury statement (Exh. P. K).
6. During the investigation, the Police recovered 4 crime empties (Exh. P. 15/1-4) and '12 bore gun.
7. Another crime empty was taken into possession vide Exh. P. 14 Muhammad Afzal accused while in custody allegedly led to the recovery of his licensed gun (Exh. P. (1.) from his house along with two empty cartridges (Exh. P. 3/1-2) and three live cartridges. Gun and the crime empties collected from the spot and live cartridges Were sent to the fire-arm Expert, Mr. Saeed Gul Khan (P. W. 18) who opined that empties (Exh. P. 15/1-4) matched with the gun recovered (Exh. P. 1).
8. It may be mentioned that during the investigation, Head Constable, Iqbal Hussain (P. W. 15) received information through (Exh. P. N.) From the Station Master of Lohi Eber Railway Station informing him that the dead body of an unknown person was lying on the Railway Track about 150 yards from the Railway Station. The body was found in four pieces and was later identified to be the body of Abdullah Khan.
9. Muhammad Nawaz meanwhile had been medically examined by Dr. Muhammad Yamin Khan, District Headquarter Hospital, Rawalpindi and the following injuries were found on his body: -
(1) 60 to 65 gunshot wounds 1/4' x 1/4' X I/4' to 1/2' X 3/4' in an area of 3' x 4' on the front of left upper thigh, edges were blackened and the wounds were bleeding.
(2) Three gunshots abrasions 1/4' X 1/4' on the front of left abdomen, edges were blackened.
(3) 10 to 12 gunshot wounds 1/4' x 1/4' x I/4' to 3/4' x 1/Y into skin deep on the cubic area and front of penis, edges were blackened. All the injuries were gunshot injuries within the duration of about six hours.
10. In cross-examination, the doctor stated that in view of injury to the femoral artery (Injury No. 1) the patient would become conscious after sore minutes. He would not have been able to talk.
11. The said Muhammad Nawaz subsequently succumbed to the injuries and the same Doctor performed the post-mortem examination on his dead body at 4-00 p. m. And found almost the same injuries which he had during his life time. The death in his opinion was due to shock and hemorrhage and Injury No. 1 was fatal and sufficient to cause death in the ordinary course of nature.
12. The prosecution in support of its case relied upon the First Information Report lodged by Muhammad Nawaz before his death, which was, treated his Dying Declaration (Exh. P. J.), the ocular evidence furnished by Mst. Ravel Jan. Gul Dad and Muhammad Rafique the recovery of the gun from Muhammad Afzal with which the crime empties recovered from the spot allegedly matched, and the medical evidence.
13. The learned Sessions Judge was of the opinion that as far as the Dying Declaration was concerned, the same could not be relied upon because accord--ing to the medical evidence, Muhammad Nawaz had received about 80 pellets as per Injuries Nos. 1 and 3. According to the ocular evidence, the bullet injuries were received in the abdomen whereas according to medical evidence. Injury No. 1 was on the left upper thigh. According to the Doctor, after this injury to the femoral artery, the victim would become semi-conscious after a few minutes and could not thereafter have been able to talk. This injury coupled with the other injuries excluded all possibilities of Muhammad Nawaz being able to talk. The inability of Muhammad Nawaz to be able to speak destroyed the Dying Declaration made in the form of the First Information Report as well as the declaration to the same effect allegedly made by him immediately after the occurrence to Gul Dad (P. W. 19) and Muhammad Rafique (P. W. 21), as alleged by them.
14. So far as the ocular account is concerned, it was observed that the only means of light available to the eye-witnesses was the alleged moon-light. According to the calendar the occurrence took place on the 21st night of the month of Jumadal Ukhra on which night there was no full moon and instead the moon was smaller then 1/4th and these circumstances falsified the suggestion of the moon being in the middle to the horizon at the time of the occurrence namely, midnight because time of moon-rise in that night being 11-30 p. m. The moon at that time was just a little above the horizon towards the Eastern side. Add to this the presence on the Eastern side of the place of occurrence of the Ziarat and trees, it comes out that the eye-witnesses could not have seen the occurrence. The witnesses were about 70 feet away from the place wherefrom Abdullah deceased was dragged as alleged and this is pertinent to note that according to the medical jurisprudence, nothing could be visible from such a distance with the position of the moon as indicated above.
15. On the basis of this discussion, the conclusion reached was that the eye-witnesses, if at all present, would have been prevented from seeing the occurrence.
16. The learned Sessions Judge was further of the view that the testimony of the alleged eye-witnesses could not be relied upon. So far as Mst. Ravel Jan (P. W.) was concerned, she was not named in the First Information Report. Moreover, according to her statement, the seat of the gun injury received by Muhammad Nawaz was in the abdomen but according to the medical evidence it was in the left upper thigh. Muhammad Rafique (P. W. 21) and Gul Dad (P. W. 19) were residents of fairly distant places and their claim to have reached the spot on hearing report of the fire-arm could not be believed.
17. Some other defects were also pointed out.
18. As far the recovery of gun is concerned, the same was also found to be without value. According to a Martial Law Order all guns were required to be deposited in police station and according to Entry No. 112, the Register Police Station, A-Division, Rawalpindi relating to the deposit of arms, the gun of Muhammad Afzal had been deposited there and there was no indication by way of his signatures against the same Register that he bad received back the same chit used to be given to the depositor at the time of the depositing fire-arm which was surrendered by him when the fire-arm was taken back, As the chit of deposit was not produced by the Police and the gun could not have been returned without obtaining back the chit, the .Recovery of the gun in these circumstances was found by the learned Sessions Judge to be fake and the evidence on the point was held to be a mere concoction.
19. So far as the medical evidence is concerned, the same was found to be inconsistent with the ocular evidence in so far as according to the so-called eye-witnesses. Muhammad Nawaz had suffered, the gunshot injury in the abdomen while according to the medical evidence it was actually suffered on the upper thigh. Furthermore, the post-mortem examination on the dead body of Muhammad Nawaz showed that the edges of each injury were blackened. This blackening could take place if a shot was fired from a close distances f. e. Within the range of 3 to 4 feet. However, according to the site-plan the shot fired was shown to have been fired from 30 feet. It was also remarked that in the event of fire from 30 feet, the area in which the pellets wound spread would be 1J feet and not 5' x 4' as shown against Injury No. 1 in this case. Thus, the eye-witnesses stood falsified by the medical evidence. ; In view of the foregoing, the learned Sessions Judge held that the prosecution had failed to bring home the guilt to the accused and consequently they were all acquitted.
20. On the appeal filed by the State, a Division Bench of the Lahore High Court reversed all the findings of the learned Sessions Judge; the dying declaration (Exh. P. J.) of Muhammad Nawaz was believed and not much importance was attached to the opinion of the doctor that he was semiconsci--ous, it being pointed out that the Doctor had not declared him to be `uncon--scious' but only `semi- conscious'. Moreover, the dying declaration was made at 5-30 a. m. While the Doctor had examined him at 8 a. m. Only 15 minutes before his death and then found him `semi-conscious'. He must have been in a better state of health 2J hours earlier, when he made the dying declaration.
21. So far as the ocular evidence was concerned Mst. Ravel Jan the widow of Abdullah, being an inmate of the house, was considered to be a natural witness. Similarly, Gul Dad and Muhammad Rafique P. Ws. Were also believed and persons who had rushed to the spot on hearing the reports of firing had taken Muhammad Nawaz to the Police Station and before whom the latter had mentioned the names of the culprits.
22. As for the recovery of the Gun, P. 1, becoming to Muhammad Afzal appellant with the crime empties (Exh. P. 15/1-4) collected on the spot later matched, it was he'd that the recovery of gun and as for the finding of the learned Sessions Judge that it was lying in the police station during these days in pursuance of a Martial Law Order reliance was placed on the statement of Moharrir A. S. I. Noor Muhammad (P. W. 12) who produced the relevant register relating to that police station which contained the entry regarding this gun. According to this witness, the gun was returned to Muhammad Afzal, as this entry bore a cross mark and he explained:- "This entry also bears a cross-mark which stands for that the weapon deposited was later returned to Muhammad Afzal Khan."
23. The learned Judges after discussing this matter at some length con--cluded:- "Accordingly, we believe the recovery of gun (Exh P. 1) at the instance of Muhammad Afzal accused.
24. He have already mentioned above that according to the report and statement of Fire-arm Report empties (Exh. P. 15/1-4) recovered from the place of occurrence were fired through the said gun (Exh. P.1). This is, therefore, a very strong corroborative piece of evidence In to connect this appellant with the commission of the offence."
25. So far the discrepancy between the medical evidence and the ocular evidence is concerned, on the basis that injuries of Muhammad Nawaz were blackened while the witnesses said that lie fired from a distance of 25 feet, it was observed: "The occurrence took place during the night, the witnesses are rustic villagers and they could not be expected to estimate the exact measure--ment in feet and inches. The distance given by such witnesses is always rough and cannot be accurate."
26. The conclusion was thus expressed: "We have already held above that Muhammad Nawaz deceased received his injuries in the courtyard of Abdullah deceased and he himself lodged the report (Exh. P. J.) in the Police Station in which he has clearly mentioned the place. Of occurrence, the names and number of the assailants and the names of the eye-witnesses. Further, we have no doubt in our mind that Mst. Ravel Jan P.
27. W. Was present in her house at the time of the occurrence. Arrival of Guldad and Muhammad Rafiq P. Ws. On the spot after hearing the fire shots has also been established by the prosecution. In the presence of these pieces of evidence, the discrepancy of distance from which Muhammad Nawaz deceased was fired at, has not got such importance."
28. However, Muhammad Hanif was given the benefit of doubt as sons of the eye-witnesses at the identification parade did not identify him correctly.
29. So far as the murder of Abdullah is concerned, as there was no direct eye-witnesses none was convicted under section 302, P. P. C in that behalf. However, the appellants were convicted for kidnapping under section 364/34, P. P. C. And also for the lurking house tress pass by night under sec--tion 460/x: 49, P. P. C. In the result Muhammad Afzal, who had allegedly caused the fatal fire- arm injuries to the deceased Muhammad Nawaz was sentenced to death while the other three appellants were sentenced to life-- imprisonment, besides being imposed other sentences and fines by order of the High Court dated 10-6-1976.
30. Since the High Court had, on appeal, reversed the order of acquittal and sentenced Muhammad Afzal to death and the other appellants to imprison--ment for life, the appellants filed a direct appeal to this Court. However, during the pendency of the appeal Allah Bakhsh son of Muhammad Bakhsh became a fugitive from justice. Hence his appeal has been dismissed on that ground, while the appeal of the remaining three appellants has been heard at full length.
31. After having heard learned counsel for both sides and having perused the relevant record we feel that the view taken by the learned Sessions Judge that nobody -had really seen the occurrence and the evidence produced could not be relied upon represents the correct situation of the case.
32. We have closely examined the evidence of Dr. Muhammad Yamin Khan P. W. Who examined Muhammad Nawaz in injured condition and afte studying the injuries received by him we are inclined to agree with the Doctor that after receipt of the injuries he could not have been able to talk. Hence his dying declaration and the alleged statement made by him before Gul Dad and Rafique P. Ws. With regard to his assailants--- cannot possibly be believed. Nor can any reliance be placed on the ocular evidence for the reasons spelled out by the learned Sessions Judge, which we consider to be more apt than the view taken in this behalf by the learned High Court. After carefully considering all the relevant circumstances, our opinion is that nobody saw the firing upon Muhammad Nawaz. We are also fully convinced that the recovery of the gun foisted on Muhammad Afzal is totally false. The gun had been deposited in the police station in pursuant to the order of the Martial Law authorities and on issuonce of a chit and the return of the gun could not to be without a receipt. The explanation given by the Moharrir that by marking a cross the gun would be deemed to have bee returned couldn---t be accepted. This view is supported by the statement Ghulam Murtaza S. H. O. (P. W. 26) who admitted that the entry in respect of arms was made in the register and separate receipts issued for the same to the deposited and that at the time of return of the arm, the receipt had to be surrendered and the respect: of the acknowledged by the depositor in the relevant register. In fact, we are inclined to accept the statement of Muhammad Afzal in his examination under section 342, Cr. P. C. That he never B got back the gun from the police station and that he had produced the receipt to show that the gun had been deposited in the police station which was Destroyed by the S. H. O. Thus, the story of the recovery of the gun Exh. P. 1 and its matching with the crime-empties collected on the spot are all bogus The planting by the prosecution of this recovery has deeply taken our fait in the rest of the evidence produced by it.
33. We are also inclined to agree with the learned Sessions Judge that the medical evidence falsified the ocular evidence. Besides the circumstance pointed out by him in this regard we further observe that according to the C prosecution evidence. Hayat Bakhsh had fired with a pistol. However, Muhammad Nawaz has not suffered any pistol shot injury.
34. Another unusual feature in the case is that the evidence of Mst. Muniran has been suppressed. The entire incident is alleged to have taken place because she refused to return to her husband's house and her father Abdullah was not prepared to send her back and had been slapped the father of Muhammad Hayat, who had come to fetch her, which insult resulted in this! Incident.
35. However, there is no mention of Mst. Muniran's whereabouts in the evidence and why she did not come forward, if she was in the house t depose to the happenings of the fateful night.
36. We are also not satisfied about the presence of Guldad and Rafique at the scene of the occurrence. Rafique admittedly lives about a hundred yards from the spot, in a different village, situate across the Railway Line Even then he claims to have arrived at the spot before Guldad, who claims t have been living only 10/12 yards away. We agree that in the state of to position of the moon neither of them could have identified the culprits. N doubt, Ravel Jan must have been in the house, but having weighed all the rele--vant factors. We think that she had not seen the culprits and her name was, therefore, dropped in the F. I. R.
37. We are, therefore, of the opinion that it would not be consistent with the principles of the safe- dispensation of criminal justice to uphold the conviction p and sentences passed by the High Court. We would, accordingly, accept this appeal and direct the acquittal of Hayat Bakhsh son of Qaim Khan --Muhammad Afzal son of Muhammad Akram and Allah Bakhsh son of Sikandar and order that they be set at liberty if not required in any other case. The appeal of Allah Bakhsh son of Muhammad Bakhsh, who is a fugitive from justice, is dismissed.