' ASLAM RIAZ HUSSAIN, J.-This petition by Inayat Khan and Ajab Khan is directed against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 28-3-1983, dismissing their appeal in a murder case.
2. The petitioners were tried along with two others for the murder of Mahmood Khan.
' The occurrence took place on 30th of June, 1980, at 5 p. m. Within the area of Dhok Naiyan, Police Station Sangjani, District Rawalpindi. The F. I. R. Is based on the statement of the deceased made by him at the Civil Hospital at 10-30 p. m. On the same day. It was later on treated as his dying declaration.
3. The prosecution version is that on 30-6-1980 at 5 p. m., when Mahmood Khan (deceased) was proceeding to see his "Rukh" along with Ashiq Hussain (P. W. 8) Khan Baig (P. W. 9) and Ashraf Khan (given up) and had his double barrel gun in his hand; his revolver around his waist; a bag containing live cartridges and a bandolier containing bullets, Inayat Khan petitioner armed with a 1.2 bore gun, Ajab Khan petitioner armed with a '12 bore pistol, Masood Khan (acquitted co- accused) armed with a 7 m. m. Rifle and Mumtaz Khan (acquited co-accused) armed with a '12 bore gun embushed him and fired volleys of shots at him. He was hit and fell down. All the for assailants, taking him as dead, picked up his weapons, his bag and the bandolier and firing from their respective weapons they fled away from the spot..
4. Motive for the offence is stated to be that Inayat Khan petitioner and Mumtaz Khan co-accused had injured Mahmood Khan (deceased) with fire-arm and a case had been registered against them under section 307/452/34. P. P. C. By the deceased which was pending. Inayat Khan had been making efforts to effect a compromise but Mahmood Khan (deceased) had refused to agree.
Because of this grudge the accused killed him.
5. The F. I. R. Was recorded by Muhammad Ayub A. S. I. (P. W. 13). After recording the F. I. R. He went to the spot and recovered, I I1, '12 bore empties and 4, 7 m. m. Empties from there. The accused were arrested about 11 days later. Gun (P. 4) was recovered from Inayat Khan which did not match with any of the cartridges found from the spot. Pistol (P. 3) was recovered from Ajab Khan which matched with 3, '12 bore empties found from the spot.
6. At the trial the prosecution mainly relied on the testimony of Ashiq Hussain (P. W. 8) and Khan Baig (P. W. 9), and another witness mentioned in the F. I. R. It also relied on the aforementioned recoveries of fire-arms; the medical evidence and the motive and the dying declaration.
7. All the accused except Inayat Khan denied the occurrence. Inayat Khan stated that it was Mahmood Khan (deceased) who had fired at him and his companions. Sher Muhammad (D. W. 1) tried to prevent Mahmood Khan (deceased) from firing at him, but Mahmood Khan injured Sher Muhammad D. W. I and Tariq Ahmad son of the aforementioned Sher Muhammad and his friend fired at and killed Mahmood Khan (deceased).
8. The learned trial Court acquitted the two co-accused but convicted Inayat Khan and Ajab Kban under section 302/34, P. P. C. And sentenced them to imprisonment for life and a fine of Rs, 5,000 each. In default of payment of fine they were ordered to undergo further 2 years' R. I. Each.
' They filed an appeal which was dismissed vide the impugned judgment.
9. The learned counsel amongst others put forward the following contentions: That the occular testimony is contradicted by the medical evidence because whereas the doctor who performed the post-mortem examination found fire-arm Injury No. 1 on the neck of the deceased to have burn edges, which showed that it was caused by a shot fired from a very close range, while the eye-witnesses have deposed that the deceased had been fired at from a distance of about 75 feet.
10. It may be mentioned, that we felt that there were apparent contradictions in the doctor's statement. Had the '12 bore gun shot been fired at the deceased's neck from a very close range, as is suggested by the doctor's statement that edges of the pellet injury on the deceased's neck were burnt, all the pellets would have entered his neck enmass and would have blown away his spine.
The fact that there was only one pellet in his neck would show that the gun shot had been fired from a considerable distance and only one stray pellet had hit and entered the deceased's neck while another stray pellet had caused a wound of entrance on the back of the left wrist deceased's which passed through leaving wound of exit on the opposite side of the wrist. The doctor has stated that this injury could have been caused by the same pellet which entered the deceased's neck after making a wound of exit in his wrist. If that was so, the edges of the wound of entry on the wrist should have been burnt rather than those on the deceased's neck.
11. In view of these contradictions we required Dr. Muhammad Zaman Niazi, who had conducted the post-mortem to appear before the Court.
' On being questioned he agreed that if the shot had been fired from a short distance all the pellets would have entered the deceased's neck enmass, producing a big gaping wound. He also agreed that the fact that the deceased was hit by stray '12 bore pellets indicated that the shot had been fired from considerable distance. He explained that he had written that the pellet injury on the neck had burnt edges because the bruised and dark appearance of the wound had led him to suppose so. In support of this assertion he relied on the view expressed in Taylor's Principles of Medical Jurisprudence (10th Edn.) Vol. I, page 441.
12. Dr. Niazi, who is a young and inexperienced person has been el negligent in the performance of his duties and was warned by us to b C careful in future because the Courts tend to place implicit reliance on medical evidence, while deciding questions of life and death.
13. The learned defense counsel argued further that according to the F. I. R. As well as the eye- witnesses when Mahmoo Khan (deceased) fell down, the accused picked up and carried away his gun and revolver as well as the live cartridges he was carrying. But according to the prosecution these very articles were subsequently handed over by the deceased's wife to Ashiq (P. W. 8), who in turn produced them before the Investigating Officer. This is evident from the statements of Ashiq (e. W. 8) as well as the Investigating Officer (P. W. 14) that the learned High Court has, after rejecting evidence of D. W. I used it to corroborate the testimony of the prosecution witnesses against Inayat Khan petitioner; ' that the statement of the deceased which was subsequently treated as dying declaration, does not ring true; ' that the gun of the deceased was not sent to the Forensic Expert. Had it been sent to the expert, it might have matched with some of the empties recovered from the spot and would have supported the defence version that it was Mahmood Khan (deceased) who had fired at Inayat Khan.
14. We feel that these contentions need consideration. Leave is, therefore, granted inter alia, to consider these contentions in order to ensure that the learned Courts below have not ignored the well-established principles for appreciation of evidence in criminal cases.