SARDAR MUHAMMAD , J.--Appellant Muhammad Hasan (25) son of Muhammad Din has filed this appeal against the order dated 15-12-1979 of the Additional Sessions Judge, Kasur whereby the learned Additional Sessions Judge convicted the appellant under section 302, P. P. C. For having murdered Bashir Ahmad, aged 25 years, sentenced him to death and to pay a fine of Rs. 5,000 in default whereof to undergo six months' R. I. Half of the fine, if recovered, has been ordered to be paid to the heirs of the deceased. Both the appeals filed by the appellant and the murder reference sent up by the learned Sessions Judge for confirmation of death sentence are disposed of by the same judgment.
2. The occurrence took place on 3-12-1975: at 2:00 p. m in an open place in front of the shop of Muhammad Ahmad 'in the Abadi of village Bhoay Asal at a distance of 14 miles from Police Station, Pattoki. , F. I. R. Exh. P. E. -I was formally recorded by Muhammad Shafi A. S. I. P. W. 5 on the same day at 6-05 p.m. On-receipt of statement Exh. P. E. Of Muhammad complainant (P W.7), father of the deceased, recorded by Sardar Nazir Ahmad A. S. I. P. W. 11 at 4.30 p. m. The same day at the spot where he had reached after having learnt about the occurrence while, ha was on patrol duty.
3. Nazir Ahmad A. S. I. P. W. 11 after recording statement Exh. P. E., prepared the injury statement- Exh.
P. L. And inquest report Exh. P. IC, regarding the dead body of Bashir Ahmad deceased and sent the same for post-mortem examination. During the spot inspection he took into possession blood- stained earth vide memo. Exh. P. Q., blood-stained Charpai vide memo. Exh. P. H. And empty cartridge P. 8 vide memo. Exh. P. J. The empty cartridge was also sealed into a parcel. All the memos. Were attested by Nur Muhammad P. W. 8 and Muhammad Sarwar P. W. (not produced).
4. The appellant was arrested by Nazi; Ahmad A. S. I. P. W. 11 on 5-12-1975 ' 12 bore gun P. 5 along with 2 live cartridges P. 6/1-2 were recovered from him and the. Same were taken into possession vide memo. Exh. P. F., which was attested by Hasan Muhammad P. W. 6 and Mutalli P. W. (not produced). All the memos were prepared by Nazir Ahmad A. S.1. P. W.
11. After the completion of necessary investigations the challan was submitted to Court.
5. According to F. I. R. Exh. P. E/l, the prosecution case briefly is that Muhammad P. W. 7, father of the deceased when on way to his house at about 2 p. m. While passing near the shop of Muhammad Ahmad, saw his son Bashir Ahmad deceased sitting on a cot in the open spate. When he reached near the shop of Ahmad Din son of Samanda, he saw Hasan Din appellant armed with a double- barrel gun coming out from a street towards the Railway line, halted, on the 'northern side of the Railway line and fired a shot at Bashir Ahmad deceased who was sitting with his back towards the Railway line. Muhammad P. W. 7 ran towards his son while making noise. The appellant after firing the shot ran back through the same street. Bashir Ahmad deceased after receiving injuries on the back of his head, Tight side of the shoulder and on the neck, fell down from the cot. The complainant placed Bashir Ahmad (deceased) on the cot with the assistance of Muhammad Arshad and Nur Muhammad P. Ws. But he died. The occurrence was seen by Muhammad Arshad P.
W. 9 and Nur Muhammad P. W. 8.
6. The motive for the occurrence was that Bashir Ahmad deceased who had friendly relations with Muhammad Arshad P. W. 9 and used to visit his house, learnt the appellant had illicit relations with Mst. Salma, sister of Muhammad Arsbad P. W.
9. Some two months prior to the occurrence the deceased asked the appellant to stop meeting Mst. Salma. On this the appellant- flared up, as a result of which the deceased gave him fist blows. It is alleged that the appellant from that day started suspecting that the deceased is also carrying on with Mst. Salma, so he was looking up for an opportunity to put off the deceased. It is stated that because of this the appellant has killed the deceased by firing a shot.
7. At the trial the prosecution produced eleven witnesses. Dr. Muhammad Ashraf `who had performed the postmortem examination on the dead body of the deceased was examined as P. W.
4. He noted the following injuries on the dead body of the deceased :-
(1) Lacerated wound 1 -- ' x I' --X cranial cavity deep left side of head. Brain matter had come out from the wound.
(2) Lacerated wound-- ' x --x cavity deep -- ' in front and to the right of injury No. 1.
(3) Lacerated wound I --x --cavity deep back of head upper part.
(4) Lacerated wound 1 -- ' x --x cavity deep to of head left side.
(5) Lacerated wound-- ' x -- " X cavity deep, left side of behind the ear.
(6) Circle wound --' diameter on the anterior part of right shoulder.
Mar ins were blackened and inverted with an exit wound measuring -- x --on the back of right shoulder. Margins of the wound were everted and lacerated. Both wounds were interconnected.
(7) Circular wound -- ' diameter right side of neck, margins blackened and inverted.
(8) Circular wound -- " diameter back of chest right side upper part. Margins everted and lacerated.
8. Muhammad P. W. 7, Nur Muhammad P. W. 8 and Arshad P. W. 9 have been examined for eye- witness account. Muhammad P. W. 7 has by and large stuck to the statement (Exh. P. E.) made by him before the Police. He has stated that at about 2.00 p. m. He saw the appellant coming out from the street near the house of Ghulam Muhammad and firing at Bashir Ahmad deceased which hit him on the back side of his neck, back side of his head and on right shoulder, on back side, when the deceased was sitting on a cot in an open place, in front of the shop of Muhammad Ahmad in the company of Nur Muhammad P. W. 8 and Muhammad Arshad P. W. 9, who were sitting on chairs near him. He has stated that the A. S. I. Reached the spot while he was getting ready to proceed to the police station, and he made the statement (Exh. P. E.) to the A. S. I. On the spot. With regard to the motive he has stated that the appellant bad illicit,-. Relations with Mst. Salma, sister of Muhammad Arshad P. W. 9 and the deceased had advised the appellant to give up his relations with Mst. Salma about two months prior to the occur--rence, as a result of which they had exchanged abuses and grappled with each other wherein the deceased had given beating to the appellant. According to him, this was told to him by Muhammad Arshad P. W. 9, Nur Muhammad P.
W. 8 and Muhammad Arshad P. W. 9 have corroborated his (complain--ant's) statement. Both of them have consistently stated that the fire of Muhammad Hasan appellant had hit the deceased on the back of the head, back of neck and back of the right shoulder. Muhammad Arshad P. W. 9 has also corroborated the statement of Muhammad P. W. 7 regarding motive for the occurrence.
9. Empty cartridge P. 8 and gun P. 5 were sent to the office of the Forensic Science Laboratory. Nur Muhammad P. W. 8 has also stated regarding taking into possession of empty cartridge P. 8 from the spot, Positive report was received from the office of the Forensic Science Labo--ratory. Hasan P.
W. 6 has testified the recovery of, gun P. 5 from the appellant at the time of his arrest, it was a licensed gun of the father of the appellant. The evidence of the remaining prosecution witnesses is more or less of a formal nature.
10. The appellant in his statement under section 342 of the Code of Criminal Procedure denied the allegations. He has also denied that gun P. 5 was recovered from him. In answer to question, `why this case against you' he stated; I had informed the Police that Bashir deceased had illicit relations with Mst. Salina, therefore, Arshad P. W. Felt annoyed against me as I had defamed his sister. Arshad killed Bashir and had falsely implicated me in this case in order to save himself."
11. The appellant produced Exhs. D. A. And D. B., copies of Register Haqdaran and Exh. D. C., D. D. And D. E. Copies of Khasra Girdawari. According to the copies of khasra Girdawari, Nur Muhammad P. W.
8 had common cultivation with Muhammad P. W. 7, father of the deceased.
12. Learned counsel for the appellant has contended-
(a) that the eye-witness account is contradictory of the medical evidence to the extent of ir- reconcilement and as such is not worth reliance. He has contended that according to the medical evidence the injuries were not the result of one fire, rather they seem to have been suffered by 3 different shots, and that the doctor has also stated in cross--examination that the injuries are the result of two different shots. In this regard learned counsel has cited authorities also ;
(b) that the eye-witnesses were interested for the reason that Muhammad P. W. 7 is father of the deceased, Nur Muhammad P. W. 8 had joint cultivation with Muhammad P. W. 7 while Arshad P..W. 9 is a friend of the deceased ;
(c) that the prosecution has not been able to prove the motive and that the evidence of matching of gun P. 5 with the crime empty P. 8 cannot be given any weight, for the reason that in spite of the fact that the empty was allegedly recovered from the spot on 3-12-1975, the same was not sent to the Forensic Science Laboratory till the 9th by which time the gun (P. 5) had also been recovered, both the gun and the empty remained in the custody of the Police and as such the possibility of replacement of the empty cannot be ruled out ; and
(d) that statement P. E. Was admittedly recorded on the spot and so it was not difficult to draw inference that the same had been prepared after consultations and preliminary investigation.
12. Learned counsel for the State has controverted the arguments of the learned counsel for the appellant and has argued that the P. Ws. Are not interested, that there is no exaggeration and even though the F. I. R. Was lodged at the spot, there is no reason to disbelieve the Police Officer. He has contended that contradiction in the medical evidence and the eye-witness account is not such which would warrant the ruling out of the evidence of the eye-witnesses.
13. We have considered the argument of the learned counsel for the appellant. We find no difficulty in agreeing with him that report Exh. P. O. Of the Forensic Science Laboratory cannot be given any weight for the reason that the empty was not sent to the office of the Forensic Science Laboratory till the gun was also recovered and as both remained in the custody of the Police and were sent together, no reliance can be placed on the report of the Forensic Science Laboratory as the possibility of substitution of the empty cannot be ruled out.
14. We have considered the medical evidence. Injuries Nos. 1, 2 and 5 are on the left side of the head, injury. No. 3 is on the back of the head, upper part, injury No. 4 is on the top of the head.
Injuries Nos. 1, 2 and 5 can be the result of one fire, possibility of infliction of injury No: 3, even though on the back of the .Head, can be considered to have been suffered by the same shot which would have caused injuries Nos. 1, 2 and 5 but injury No. 4 which is on the top of the head cannot be the result of the same shot. It is difficult to assume that the injury on the top of the head could be the result of a shot fired from the back side of the deceased. The doctor who had conducted the post- mortem examination has also stated that injuries Nos. 1 0 5 have been caused by two shots.
15. Injuries Nos. 6 and 7 are on the front side and on the upper part of the chest, injury No. 7, according to diagram is just shown near the base of the neck while injury No. 6 is in the frontal part of the right shoulder. These two injuries obviously could not have been suffered from a shot fired from the back side. Injury No. 8 is an exit wound. As a result of the above analysis the position that emerges is that the deceased had received injuries by three different shots. The other aspect of the medical evidence is that margins of injuries Nos. 6 and 7 were found to have been blackened and averted while no marks of blackening were found by the doctor on the seat of injuries Nos. 1 to 5.
This distinction and difference of the description of the injuries makes out, the case of, two different shots having been fired from two different distances. Injuries Nos. 6 and 7, according to the opinion of the doctor, might have been caused from a distance of 6 feet. He has further stated that injuries Nos. 6, 7 and 8 have been caused by firing from a distance different from the one of injuries Nos. 1 to 5. The analysis of the medical evidence on this account also brings us to a conclusion that the injuries on the person of the deceased were not the result of one shot. According to the statement of the doctor in the cross-examination, possibility of injuries Nos. 6 and 7 having been caused by 2 different shots cannot be ruled out.
16. Having analysed the medical evidence, we would now like to consider the eye-witness account and see how far it tallies with the medical evidence. It is consistent stand of the eye-witnesses, right from the lodging of the first information report till the conclusion of trial that the appellant had fired at the deceased from the bach side and had fired only one shot, all three of them with some minor discrepancies have supported the version given in the first information report that the appellant had fired from near the Railway line, which distance was measured by P. W. 1 Abdul Aziz, Draftsman and according to him the point where appellant Muhammad Hasan was shown to be present at the time of the firing the shot, was at a distance of 11 karams from the place where the deceased was fired at. There is, thus clear contradiction of the eye-witness account by the medical evidence, rather the eye-witness account is irreconcilable with the medical evidence. What remain to be assessed is that in the circumstances what weight can be given to the eye-witness account?
No doubt, no enmity has been suggested on behalf o the appellant with the prosecution witnesses but at the same time they cannot be termed as uninterested, for the reason that the complainant Muhammad P. W. 7 is father of the deceased, Nur Muhammad P. W. 8 was having joint cultivation with the father of the deceased while Muhammad Arshad P. W. 9 admittedly was a friend of the deceased.
17. We have gone through the authorities cited by the learned counsel for the appellant in this regard. It was observed in Khurdo and others v. The State PLD 1963 Kar. 92"Eye-witness-Statement contradicted by medical report---Story not fitting in with injuries on person of deceased-Inference against witness" In that case also, the eye-witnesses had stated that all the shots were fired from the back. The same was mentioned in the first information report but at the time of post-mortem examination some injuries were found to have been fired from the front also. Unlike the case in hand, the P. Ws. In the case reported above had made an attempt to show that when the second shot was fired by the accused he was in a flanking position with the deceased. The eye-witness account was not believed and the appeal was allowed.
18. In Bagh Ali etc. The State PLD 1973 S .C 321Hamoodur Rahman, C. 1. (as he then was) observed that in case of conflict of ocular account with the medical evidence, placing reliance on ocular testimony is not safe. In that case some 12 empties were found on the spot. There were 9 gunshot wounds on one person and 2 gunshot wounds on the other. The doctor opined that 9 injuries on one person were the result of 3 gunshots while two injuries on the other person were the result of 2 gunshots.. The eye-witness account was not believed and the appeal was allowed.
19. In Bashir Ahmad and another v. The State (1) it was held : "Evidence --Appreciation of-Oral evidence regarding description of injury and range of 'shot contradicted by medical evidence- Medical evidence, held, to be preferred, in circumstances." In that case, according to the prosecution witnesses the appellant had fired at the deceased from a distance of 12/15 feet but the description of injury given by the doctor who had conducted the post-mortem examination showed that the injury would have been suffered within a few inches. Eye-witness account was not believed and the appeal was allowed.
20. In Mangio v. The State (2) it was observed that sustaining of conviction on the basis of the evidence of the ocular witnesses who were completely belied as to manner and number of injuries inflicted upon the deceased is highly dangerous.--The appeal was allowed.
21. In Sardar Beg v. The Siate (3Y even the injured eye-witness to the occurrence was disbelieved on the ground that his version of the occurrence was clearly belied by the medical evidence. It was held that in such circum--stances medical evidence should be preferred as reliance upon the testimony of such witnesses for convicting the appellant/accused would be highly dangerous.-.The appeal was accepted.
22. Coming to the facts of this case we have noted that the account given by the eye-witnesses regarding .The distance from where the injuries were caused, the number of shots and the side from which the appellant is alleged to C have fired, is clearly contradicted ' by the medical evidence. In the circumstances, we have come to the conclusion that it will not be safe to rely on the evidence of the eye-witnesses.
23. We have also considered the argument of the learned counsel for the appellant that in view of the fact that the first information report was lodged at the spot, natural inference would be that the F. I. R. Was recorded after due deliberations.
Admittedly the F. I. R. Was lodged at the spot, the occurrence was stated to have taken place at 2.00 p. m., statement Exh. P. E. Was recorded at 4.30 p. m., apart from the fact that the A. S. I. Has not been able to give plausible explanation as to how he reached the spot, the other important thing in this case is that Nur Muhammad P. W. 8 has stated in cross-examination that the police had arrived at the spot it 3-30 p. m. The other important fact is that had the Police not arrived earlier than 4-30 p. m. The complainant would have certainly gone away from the place of occurrence to lodge the F. L R.
(I) 1974 P Cr. L 1 385(2) 1976 P Cr. L J 243
(3) 1978 P Cr. L J 690 The fact of his remaining on the spot shows that the Police had either come or was called to the spot even before 4-30 p. m., so even if it is granted that statement Exh. P. E. Was recorded at 4-30 p. m., there is no explanation as to what the Police Officer had been doing for one hour after his arrival on the spot. The irresistible inference would be that either preliminary investiga--tions were being conducted or consultations were being made to set up the witnesses.
Learned counsel for the appellant has referred to Ali Sher's case wherein it was observed that when Police Officers conveniently show themselves to be present somewhere in the vicinity where the occurrence has taken place, the inference is unavoidable in such cases, and the Court is to presume that the F. I. R. Was recorded at the place of occurrence after preliminary inves--tigations by the Investigating Officer. It was further held that in such circumstances the F. I. R. Is a mere statement of a person before the Police, and so inadmissible in evidence and cannot be taken into consideration.
24. The same view has been reported in Ghulam Qadir's case wherein it has been held that when the F.
1. R. Is lodged at a place other than the Police station, unavoidable inference is that it was recorded after preliminary investigations-the evidence of the witnesses named in such a report was not believed.
26. In the instant case also the position is the same. '
As a result of the above discussion and the reasons enumerated therein the position that emerges is that the evidence of the Director, Forensic Science Laboratory stands ruled out, the F. I. R. Is found to have been lodged in suspicious circumstances and the evidence of the eye-witnesses who were connected with the deceased stands clearly contradicted by the medical L evidence on many aspects and thus not worth reliance, we hold that even in some weight is given to the evidence of motive there is no evidence which would connect the appellant with the 'crime beyond any reasonable shadow of doubt. The prosecution has failed to prove the case against the appellant, the whole case is full of doubts and shrouded in mystery. We, therefore, acquit the appellant by giving him the benefit of doubt. The appeal is accepted and the sentence of death is not confirmed. He shall be released forthwith if not required in any other case.