NASIR ASLAM ZAHID, J.---In Sessions Case NO. 143(77 the four appellants before this Court, namely
(i) Arz Muhammad son of Faiz Muhammad Siroli, (ii) Bashir son of Mir Muhammad Siroli, (iii) Jamal son of Bahadur Siroh and (iv) Faiz Muhammad son of Umer Ali Siroli were the accused and they were convicted by the learned Sessions Judge, Dadu for the murder of Dilawar by judgment dated 6th November, 1980 under section 302/34, P. P. C. And sentenced appellants Arz Muhammad and Basher to death, anal appellants Jamal and Faiz Muhammad to imprisonment for life. In addition, appel--lants Arz Muhammad and Bashir were further ordered to pay a sum of Rs. 2,000 to the legal heirs of the deceased as compensation under sec--tion 544-A, Cr. P. C. And in default to suffer. R.. n. For -- months, By a short order dated 3rd November, 1981, after hearing learned counsel for the parties, we had allowed the appeal filed against the judgment of Trial Court by the Appellants and had set aside their conviction and sentence and further declined to confirm the sentence of death against Arz Muhammad and Bashir. By the said short order we had further directed that appel-- lants Nos. 1, 2 and 3 be set at liberty if not required in any other case and as regards appellant Faiz Muhammad, who was on bail, it was ordered that his bail bonds be cancelled. The reasons which led as to pass the said short order dated 3rd November, 1981 are contained in the present judgment.
2. The F. I. R. Was lodged in this case by the complainant Ali Hasan son of deceased Dilawar at Police Station Rukkan, District Dadu at 9-00 a. m. On the day of the incident, which was 16th April, 1977 and the time of occurrence was recorded as 7-30 a. m. According to the F. I. R., the complainant lived with his father Dilawar deceased and brother P. W. Ali Sher in village Purano Dero and they had cultivated the wheat crop in the land of Rasool Bux Kalhora near the village. It was reported that on 16th April, 1977 at Fajar prayer time the complainant, his brother, father and cousin Ali Nawaz went together to the land for collecting the harves--ted crop and to keep the same in the daira. After collecting the harvested crop in the daira, these four persons were returning to their village and when they reached the public way going to their village they met P. W. Ghulam Rasool Punjabi who also accompanied them. According to the F. I. R. Deceased Dilawar was walking 8 or i0 paces ahead from the rest of them when suddenly the four appellants confronted them with Arz Muhammad and Bashir armed with country-made pistols, Jamal with a hatchet and Faiz Muhammad empty handed. According to the F. I. R. Faiz Muhammad instigated others not to spare them and take revenge and on this Arz Muhammad fired at the deceased which hit the deceased who fell down and then appellant Bashir also fired a second shot at the deceased. Jamal and Faiz Muhammad threatened the complainant party not to come near. The complainant party then raised cries, and on their cries, villagers including Din Muhammad, Muhammad Urs, Ali Bux Bhatti and others came from the southern side and on seeing them the four appellants ran away towards the north with their weapons. Dilawar died on the spot. The complainant then came to the Police station and lodged the F. I. R. Leaving his brother Ali Sher, cousin Ali Nawaz, Ghulam Rasool Punjabi and other persons with the dead body. According to the F. I. R. The appellants had murdered Dilawar due to previous enmity with Faiz Muhammad and it was at the instigation of Faiz Muhammad that Dilawar was murdered.
3. In this case the prosecution has relied upon the ocular testimony of four witnesses namely P. W. 1 complainant Ali Hasan, P. W. 3, Ali Sher (both sons of the deceased) P. W. 2 Ali Nawaz (nephew of the deceased) and P. W. 4 Ghulam Rasool Punjabi. The prosecution has further relied upon the evidence, as corroboration of the ocular testimony, of P. W. 6 Din Muhammad and P. W. 7 Ali Bux.
Apart from this re--liance had been placed by the prosecution upon the recoveries which comprise the recovery of the two country-made pistols at the pointation of appellants Arz Muhammad and Bashir and hatchet by appellant Jamal, and two crime empties from scene of the incident. Further, reliance has been placed on the reports of the Chemical Examiner and the Ballistic Expert and also on medical evidence given by P. W. 12 Dr. Allah Wayaro who had performed the post-mortem. It may be observed here that the learned Sessions Judge has not relied upon the recoveries and has convicted the appellants on believing the ocular testimony, and the plea raised on behalf of the Appellants that there was an apparent conflict between the ocular testimony and the medical evidence was not accepted by the learned Sessions Judge.
4. We are in agreement with the learned Sessions Judge that in this case no reliance could be placed on the recoveries. We say so as firstly the mashir. Of recovery of two crime empties P. W. 5 Sher Muhammad is a professional mashir. This witness had admitted in his cross-examination that he was professional mashir and was called by the Police to become a mashir not only in the case relating to his village but also cases of other places. He is also a retired police constable. The other mashir Mumtaz Ali was not examined. Secondly crime empties would, have been found at the scene of the incident if after firing from their country-made pistols, the two appellants, namely, Arz Muhammad and Bashir, had reloaded their pistols after dropping the crime empties of the cartridges which had been fired. In this respect we find from the ocular testimony that no statement had been made that the pistols were reloaded by these two appellants after firing the first shots and then there appeared to be no reason for reloading these pistols, if the incident had happened as alleged, after firing one shot each from the two pistols the four appellants ran away.
It is not the case of the prosecution and none of the four eye--witnesses have stated that the appellants attempted or tried to shoot or kill the eye-witnesses as the only target of the assailants was deceased Dilawar. It may be observed that it is an admitted position that the two country- made pistols in this case did not eject the empties automatically on firing but after one fire the empty had to be manually taken out. In these circumstances the recovery of crime empties becomes subject to doubt.
The first three appellants, namely, Arz Muhammad, Bashir and Jamal were arrested, according to the mashirnama of arrest (Exh. 17) on 17th April 1977 at 12-30 noon, i.e. a day after the incident and according to the mashirnama these three appellants were produced by the Nekmard of the village, namely, Muhammad Bux Dasti. The fourth appellant Faiz Muhammad was arrested on 18th April, 1977 (Exh. 23) at 6-00 p. m. From a street in the village close to the house of the appellant. The two mashirs of arrest are P. W. 8 Fida Hussain (an ex-constable who had been discharged from service) and Lal Khan, who was not examined. Now, according to the mashirnamas relating to securing of crime weapons, the pistol of Arz Muhammad was produced by him at 1-30 p.m. On 17th April 1977 from his house from a corn bin lying in the courtyard of his house (Exh. 18). The pistol of appellant Bashir was produced by him from his house from the bushes kept on the roof of the house and this was recovered at 2-30 p. m. (Exh. 19) and the hatchet of appellant Jamal was produced by him from his house at 3.15 p. m. On 17th April 1977 (Exh. 20). The two mashirs for all the three mashirnamas of recoveries of weapons are the same, namely, P. W. 10 Fida Hussain and Lal Khan. The incident had taken place, according to the prosecution case, early in the morning on 16th April, 1977 and the F. I. R. Was lodged at 9-00 a.m. After which the S. H. O. Of Rukkan Police Station, P.
W. 10 Muhammad Siddiq, had carried out the investigation. The Investigation Officer had searched the houses of the accused on the same day, i.e. On 16th April, 1977 for the accused as well as for the crime weapons but he could not find the same. This is in his evidence, If crime weapons had been concealed by the accused in their own houses, and they were produced from the places mentioned in the respective mashirnama relating to their arrest and recovery of the crime weapons, there would have been no difficulty for the Investigating Officer to find these crime weapons on 16th April, 1977. However, according to the Investigating Officer these crime weapons were not there on 16th April, 1977, as according to him, the appellants had absconded and that they came back on the next day and then they must have concealed the weapons in. Their houses and that is why he was not able to find these weapons earlier on 16th April, 1977. We are not impressed with the evidence relating to recovery given by the Investigating Officer and on account of the doubt that has been created about the mashirs themselves, as observed earlier, we are in agreement with the learned Sessions Judge that in this case no reliance can be placed upon the recoveries not only of the crime empties but also of the crime weapons.
There is an additional reason for rejecting the recoveries in the present case and that is that the appellants Arz Muhammad and Bashir had also been challaned and tried under the Arms Ordinance for being found in possession of unlicensed fire-arms. The learned trial Court, on the basis of his finding of rejection of recoveries had acquitted the said two appellants in respect of the cases against them under the Arms Ordinance. No appeal has been filed admittedly by the State against the acquittal of these two accused in the Arms Ordinance cases.
5. The ocular testimony in this case is consistent on the point that first appellant Arz Muhammad had fired a shot from his country made pistol at Dilawar who fell down and then appellant Bashir, at very close range, while standing over deceased Dilawar fired from his country made pistol. The eye-witnesses are also very clear on the point that both the shots hit deceased Dilawar at very close range. In this connection we would here examine the contention raised by Mr. Muhammad Hayat Junejo, learned counsel for the appellants, that this evidence just does not fit in with the medical evidence, as according to learned counsel, the medical evidence is clear on the point that only one shot was fired. We consider it necessary to reproduce here the evidence of the Medical Officer relating to the injuries found by him while performing the post-mortem of the deceased.
The evidence relating to injuries by P. W. 12 Dr. Allah Warayo is as follows : ---(1) A fire-arm wound 1----- in diameter on left side of chest closed to sternum 2----- medial and in line with left nipple.
(2) A pellet wound ----- in diameter, ----- above and slightly medial to Injury No. 1.
(3) A pellet wound ----- in diameter, ----- above slightly lateral to injury No. 1.
(4) A pellet wound ----- in diameter, ----- below Injury No. 1. Injuries Nos. 1 to 4 appeared to be the wounds of entrance.
(5) A hard swelling ----- in diameter, ----- above injury No. 1. A pellet was secured from this injury on disection. This pellet seems to have been reflected after striking some rib.
(6) Six pellet wounds each measuring ----- to 1/3--- in diameter on right side of back 1--- to 2" apart from each other and 3 to 4" away from vertebral column.
(7) Six pellet wounds each measuring ----- to 1/3--- in diameter on left side of back upper part 1/2" to '1" away from each other and 1----- to 2" away from vertebral column.
(8) A hard swelling ----- in diameter on right side of back just above lumber region. One pellet secured on disection from this injury.
Injuries Nos. 6 to 8 indicate exit wounds to Injuries Nos. 1 to 4."
The Medical Officer in his evidence has stated that Injuries Nos. 1 to 4 appeared to be the wounds of entrance and Injuries Nos. 6, 7 and 8 were exit wounds in respect of Injuries Nos. 1 to 4. It is clear that injury No. 5 was not an entrance wound, as according to the Medical Officer this was caused on account of deflection of a pellet after striking some rib. In his cross-examination, the Medical Officer stated that "most probably all these wounds were the result of one shot". The size of wound No. 1 is 1----- in diameter and it has been described by the Medical Officer as a "fire-arm wound", whereas the other wounds of entry have been described by the Medical Officer as "pellet wounds" and each one of them is only ----- in diameter and all these pellet wounds (Injuries Nos. 2, 3 and 4) are very close to Injury No. 1. The ocular testimony, as observed earlier, is consistent on the point that both the shots had hit deceased Dilawar, and that both the shots had been fired from very close range. If both shots were fired from very close range, there should have been two fire-arm wounds bigger than the wounds Nos. 2, 3 and 4. Injury No. I, which is a fire-arm wound and 1----- in diameter shows that this was the wound caused by one shot fired from one pistol. However, there is no other wound of that size close to 1-----. If a second shot had been fired from a country-made pistol of similar make and it had it the deceased from such close distance there would have been a larger wound than what is mentioned against Injuries Nos, 2, 3 and 4. This with the reply in the cross-examination by the Medical officer that "most probably all these wounds were the result of one shot" show that apparently- only one shot had been fired at the deceased which hit him from close range. It was contended by Mr. Jalaluddin Baloch, learned counsel for the State, that the other pellet Injuries Nos. 2, 3 and 4 or any one or more- of these three injuries could have been caused from the pellets of the second shot fired by Bashir. However, as observed earlier, both the shots were fired at close range and both the shots according to ocular testimony bad hit the deceased. The other shot also should have caused a larger wound than the wounds shown against Injuries Nos. 2, 3 and 4. It was in the alternative contended that the second shot may have hit the deceased at the very spot where the first shot had entered the body of the deceased leaving no second wound. The contention on its face appears unbelievable. Further in view of the answer given in the cross-examination by the Medical Officer, the State should have, if they wanted to, got the clarification, if clarification was possible, in re-examination. However, this was not done. In view of this we are satisfied that on the basis of the medical report and the evidence given by the Medical Officer it is established that only one shot had hit the deceased. In the face of this position, there is a direct conflict between the medical evidence and the ocular testimony. The four witnesses have with clarity deposed that two shots were fired one each by appellant Arz Muhammad and appellant Bashir. If, however, it has been established through medical evidence that only one shot was fired, it reflects upon the veracity of the evidence given by the eye- witnesses. The entire testi--mony given by the eye-witnesses relating to their witnessing the incident as mentioned by them has become subject to doubt.
6. Apart from the conflict between the medical evidence and the ocular testimony, it has further been noticed that there was 4ladmitted enmity between the appellants and complainant party and this has been mentioned not only in the F. I. R. But it has also been admitted by the three related eye-witnesses in their depositions before the trial Court. Apart from the admitted enmity the first three eye-witnesses, namely, P. Ws. 1, 2 and 3, are closely related amongst themselves and also to the deceased. Two of the eye-witnesses are sons of the deceased and the third eye- witness is the cousin of the other two eye-witnesses and also the son of the sister of deceased Dilawar. Great reliance was placed by the A trial Court on the testimony of P. W. 4 Ghulam Rasool who was described as an independent witness. Apart from conflict with the medical evidence -- the evidence of P. W. 4 Ghulam Rasool does not inspire confidence. He is a chance witness and his sudden appearance at the most crucial moment in the circumstances of this case, raises some doubt. He is with his cycle throughout but in the mashirnama of wardat no mention is made of the cycle. He has not given any plausible explanation for his chance meeting with the complainant party at the decisive time. There are then certain infirmities in his evidence and also portions thereof which are contradictory to the evidence of the related three eye-witnesses.
7. There being a conflict between the medical evidence and the ocular testimony and on account of reason given in the previous paragraph coupled with the rejection of recoveries, we hold that case against the appellants has not been established. The appeal filed by the appellants is accordingly accepted and their conviction and sentences are set aside. Reference under section 374, Cr. P. C. Is not accepted.