SARDAR MUHAMMAD, J.-Appellants Munawar (45), Falak Sher (35) Son of Bagga, and Asghar (25) have been convicted by Mr. Muhammad Zaman Khan, Additional Sessions Judge, Sahiwal vide order dated 22nd December, 1980 under section 302/34 of Pakistan Penal Code for having committed the murder of` Falak Sher son of Haji Said Muhammad. Munawar appellant has been sentenced to death. The other two appel--lants have been sentenced to undergo imprisonment for life. Each of the appellants has also been sentenced to pay a fine of Rs. 2,000 in default whereof to suffer R. I. For two years. Half of the fine, on recovery has been directed to be paid as compensation to the legal heirs of Falak Sher deceased.
2. All the three appellants have filed Crl. Appeals No. 20/81 (Lahore) and 6/81 (Multan). The learned Sessions Judge has sent up Reference for confirmation of the death sentence and the father of the deceased has filed Crl. Revision No. 30/81 (Multan). Since all the matters arise out of the same judgment, they are being disposed of by a single judgment.
3. F. I. R. Exh. P. C./1 was recorded at Police Station Depa1pur on 1st July, 1979 at 11-55 p.m. By Asghar Ali, Moharrir Head Constable (P. W. 3) on receipt of statement Exh. P. C. Of Falak Sher (deceased) son of Haji Said Muhammad, recorded by Mulazam Hussain, A. S.-I. At Police Post Baseer Pur on the same day at 10.40 p.m. According to the statement (Exh. P. C.) Falak Sher deceased accompanied by Bagga son of Sajwara P. W. 9, his brother SaeeD Khan P. W. 8 was on way to their house on a tractor driven by the deceased. At about 8,p m. When they reached near Chadaur bridge on the canal bank they saw appellant Munawar armed with a gun, alongwith the other two appellants who were empty-handed. They raised lalkara that they will avenge the insult today. The deceased continued driving the tractor on the canal bank. Munawar appellant fired shot from behind which hit him on left side of back and left arm. Falak Sher deceased however, continued driving the tractor. On the noise raised by the deceased and his companions, the appellants ran away.
4. Motive for the occurrence as stated in the statement (Exh. P. C.) was that the deceased had married Mst. Zaidan, ex-wife of appellant Falak Sher, whom he had divorced 3 years prior to the occurrence.
5. Mulazam Hussain A. S. I. (P. W. 11) during spot inspection took into possession crime empties Exhs.
P. 5 and P. 6 from the spot, vide memo. Exh. P. G. Two broken lights of the tractor were also taken into possession from the spot vide memo. Exh. P. H. Munawar appellant at the time of arrest produced gun P. 7, which was taken into possession vide memo. Exh. P. J. The gun and the empties were sent to the Forensic Science Laboratory. Both the empties were found to have been fired from the gun. Report Exh. P. Q. Was tendered in evidence at the trial.
6. Falak Sher (deceased) died on 5th July, 1979. His post-mortem examination was conducted by Dr. Munir-ud-Din (P. W. 1). Falak Sher deceased had been earlier examined for his injuries by Dr. Shabir Suleman (P. W. 12) on 2nd July, 1979. After the completion of necessary investigations the challan was submitted to Court.
7. At the trial the prosecution in all produced twelve witnesses. Statement Exh. P. C., made by Falak Sher (deceased) to Mulazam Hussain A. S. I. Was tendered in evidence as dying declaration.
8. Dr. Munir-ud-Din P. W. I at the time of post-mortem examination noted 2 incised surgical wounds and the following 3 fire-arm wounds :-
(1) A rounded fire-arm injury with edges inverted 1" x 1" x deep going on the back and middle of the left side of abdomen.
(2) Multiple small blakish round holes around the injury No. 1 in an area of 7" x 11" xdeep going on back side of the left of abdomen and back lower chest.
(3) Multiple small hole in an Area of 3--- x 3" and muscle deep on the inner side of the left elbow.
On dissection three wads of cartridges and four pellets were found from the area around injury No.
1. In cross-examination, the doctor has stated :- "It is correct that in this case the fire-arm had been fired from a very close range. The fire-arm was very close to the body of the deceased and it was within one foot."
9. Falak Sher deceased was examined in his lifetime by Dr. Shabbir Suleman P. W. 12, who had noted seven fire-arm injuries, some of them multiple in nature. According to his opinion injuries Nos. 1 to 7 were caused by fire arm.
10. SaeeD Khan P. W. 8, real brother of the deceased and Bagga P. W. 9, paternal aunt's son of the deceased have almost with one voice stated that when they were returning to their house alongwith Falak Slier deceased who was driving the tractor, while returning from Baseer Pur where they had gone to get the tractor repaired, they saw appellants Munawar armed with a gun and the other two appellants empty-handed, in the light of the tractor, emerging from the northern side of the canal. It was 8.00 p.m. Falak Sher and Asghar appellants raised a lalkara that Falak Sher deceased should not be left alive and be done to death, whereafter appellant Munawar came to rear side of the tractor and fired two shots which hit Falak Sher deceased on the left arm and left flank. The two witnesses in order to save themselves had taken up the position at `Paidans'. According to them Falak Sher deceased continued driving while the appellants ran away. They have further stated that they all then went to the Dhari of Niamat, from where Falak Sher deceased, was removed to Police Post Baseer Pur on a cot with the assistance of Anwar and Muhammad Hussain.
11. SaeeD Khan P. W. 8 in cross-examination has admitted that Asghar accused and his brother were challaned in a case under section 307, F. P. C. For firing at him and the case was pending trial at the time of occurrence. He has also admitted that they had long-standing enmity with the accused due to previous murders. According to him the deceased had married Mst. Zubaidan 3-4 years before the occurrence during subsistence of his earlier marriage with Mst. Sughran, from whom be had a son and a daughter. He has, however denied, that the relations of four brothers of Mst. Sughran with him had become strained because of second marriage. He has further stated in cross-examination that the deceased was taken to hospital at Hujra Shah Muqeem at 1-00 a.m. But his father had not reached there and that he had himself reached the spot at 5-30 a.m. On the same day.
12. Muhammad Arif P. W. 6, who is witness of recovery of empties Exhs. P. 5 and P. 6 from the spot, has admitted in cross-examination that he was first cousin of the deceased. Muhammad Tufail P.
W. 10 has deposed that Munawar accused had produced gun P. 7 in his presence at P. P. Baseer Pur.
He has admitted in cross-examination that he is nephew of the father of the deceased and that he had gone to Baseer Pur on that day to enquire about the progress of the investigation in the case.
13. Learned counsel for the appellants has contended :--
(a) that the eye-witnesses in this case are interested and inimical ;
(b) that the eye-witness account, particularly the dying declaration is contradictory of the medical evidence, and the account given in the dying declaration and by the eye-witnesses is also con-- tradictory ;
(e) that the motive for the occurrence is very weak and does not inspire confidence, particularly keeping in view the role assigned to appellant Munawar ;
(d) that the evidence of recoveries of the crime empties and that of the production of gun is not confidence expiring ;
(e) that in any case no reliance can be placed on the opinion of the Fire-arm Expert for the reason that the parcels of the empties were not sent till the recovery of gun, and no explanation for delay .In despatching the crime empties has been given ; and
(f) that the first information report was stated-to have been lodge --at the Police Post 2 hours and 40 minutes after the occurrence, while the Police Post is situated at a distance of one mile only.
Learned counsel for the appellants has placed reliance on Slier Bdhadur and another v. The State1972 SCMR 651) and Muhammad Shafi and another v. The Stare(PLD 1968 Lah. 869).
Reference has also been made to page 74 of "The Identification of Fire-arms and Forensic Ballistic's" by Major Sir Gerald Burrurd; and pages 136 and 137 of "Legal Aspects of Medical Practice by Bernard Night (second edition).
14. Learned counsel for the State; complainant have controverted the arguments advanced by the learned counsel for the appellants. With regard to opinion of the Ballistic Expert learned counsel for the com--plainant has referred to page 295 of `Taylor's Principles and Practice of Medical Jurisprudence, 12th Edition.
15. We have examined the contentions raised by the learned counsel for the parties in the light of the evidence on record. We find substance in the contention of the learned counsel for the appellants that the motive alleged for the occurrence in this case for commission of crime is very weak. Appellant Falak Sher had divorced his wife some 3-4 years prior to the occurrence whereafter the deceased had married her. Not a word has been stated as to whether Falak Sher appellant had expressed any indignance when the deceased had married Mst. Zubaidan. It is admitted by the P. Ws. That till the present occurrence no incident between the parties had taken place for the deceased having married the divorced wife of Falak Sher appellant. It is not the case of the prosecution that Mst. Zubaidan either deserted Falak Sher appellant or obtained divorce herself rather their case is that Falak Sher himself divorced. Nothing has been stated about the reaction of Munawar appellant over the marriage of Mst. Zubaidan with the deceased. In the circumstances it does not seem logical that Munawar appellant would have thought of murdering the deceased on account of his having married the ex-wife of Falak Sher appellant. In the same way it does not seem to be reasonable that Falak Sher appellant would have gone to the spot to avenge the so-called insult empty-handed. We do not find any difficulty to conclude that the alleged motive could not have impelled the appellants to attack the deceased particularly, appellant Munawar who has been assigned the main role of having caused the death of the deceased.
16. The crime empties which were stated to have been takers into possession from the spot on 2nd July, 1979 were not despatched to the office of the Forensic Science Laboratory till 14th July, 1979 no explana--tion for not sending the parcel of the empties till the day of recovery of gun P. 7, has been given. The parcels of the gun and the empties were sent together. Possibility of substitution cannot be ruled out. In the circumstances, we feel that it will not be safe to rely on the opinion of fire arm expert. In coming to this conclusion, we are fortified by the dictum laid by their Lordships in Sher Bahadur's case and Muhammad Shag's case.
The evidence of recovery of gun P. 7 is also doubtful. Gun P. 7 is stated to have been produced by Munawar appellant at the Police Post when he had come to surrender. Thestated action Munawar appellant is not appealing in the circumstances of this case. The statement of P. W. 6, the attesting witness who is first cousin of the deceased that he (1) 1972 SCMR 651(2) PLD 1968 Lab. 869 had come to the Police Post to enquire about the progress of the case, shows his keenness and interest in the deceased. In this view of the matter the evidence of recovery of gun (P. 7) in itself smacks padding, and does not inspire confidence.
17. The dying declaration in this case is in fact the statement of Falak Sher deceased made to the Assistant Sub-Inspector of Police for registration of the case. Apart from the fact that it was recorded by an A. S. I. Without getting the opinion of any doctor whether the deceased (injured at that time) was fit to make a statement or not,, the fact remains that Falak Sher deceased was not conscious of the fact tat, this may be his last declaration. And as such the statement of the deceased cannot be placed at the level of a dying declaration recorded by a person other than Police Officer after obtaining the opinion of the doctor and with a note of clarification to the deceased that his dying declaration is being recorded. The dying declaration in this case does not find corroboration from the medical evidence, rather the medical evidence contradicts the dying.
Declaration. Although it is not specifically stated in Exh. P. C. That one shot was fired but the construction of the sentence that Munawar appellant fired shot from behind which hit him on the back and the left arm, is indicative of the fact that he had stated about having received one shot.
Although the eye-witnesses have mentioned that Munawar appellant had fired two shots, still the stress laid by the learned counsel for the State/complainant that the F. I. R. Being not a detailed document, the mere omission of the number of fires in view of the fact that the deceased had given the seat of the injuries, should not materially affect the merits of the dying declaration, does not place the case of the prosecution at a higher level in any manner for the reason that the eye- witness account in itself does not find corroboration from the medical evidence. According to the eye-witnesses Munawar had fired twice by coming behind the tractor from a distance of 10-12 feet which had bit the deceased. According to the doctor who bad conducted the post-mortem examination, 3 wads were found near injury No. 1. Learned counsel for the appellants has argued that according to the eye-witnesses the tractor was being driven at a speed of 25 miles, and as calculated on their own statements, the tractor was moving at the time of occurrence at a speed of 36 feet per second. He argued that even if it is considered that the second fire would come within half second of the first fire, the tractor would have moved 18 feet from the place wherefrom the first fire was shot. He has strenuously argued that 3 wads could not have entered the body, as a result of one shot having fired. In this regard he has referred to last paragraph at page 136 concluded at page 137 of, ---Legal Aspects of Medical Practice--- by Bernard Night, which reads as follows:- "Non-contact, but close.-range discharges will still cause powder blacken--ing, singeing and carbon monoxide formation, all decreasing as the range increases. Beyond one yard, these effects virtually disappear, though microscopic evidence of powder residues maybe found on scrapping from the skin surface. The cardboard and/or felt wad from the cartridge can penetrate the wound up to about 2-3 yards and may travel in free flight up to six yards. The finding of wads deep inside the wound, indicates that the range was probably not more than six feet."
He also referred to first paragraph at page 74 of, 'The Identification of Firearms and Forensic Ballistics', by Major Sir Gerald Burrard, which reads as under :- "The overshot card wad, when one is used, separates from the shot charge and rest of the wadding first of all, and seems invariably to have dropped clear of the shot charge before a range of 6 feet is reached. This being so, the presence of an overshot card wad in a wound provides very strong presumptive evidence that the shot was fired from less than 6 filet; while the absence of the overshot card wad suggests that the shot was fired from more than 6 feet provided the pathologist can be absolutely certain that he did not overlook the wad in the wound. This is a contingency which must be realised."
18. Learned counsel for the complainant asserted that a wad may penetrate into the body from 15- 20 feet distance also. In this regard he referred to the last line of para. `Wounds and Marks from Wad, Powder, etc.' of, `Taylor's Principles and Practice of Medical Jurisprudence', 12th Edition, Volume-I, at page 295. Which. Reads as under :- "A gun loaded with a blank wad, or even with powder only, may cause death. A disruptive force results from the discharge, and this itself becomes a dangerous force. The lighter the projectile, the shorter the distance to which it is carried ; but when discharged near to the body, even gases may produce a fatal penetrating wound. Clothing may be carried into the wound, and lead to death, either from mechanically wounding a vessel or organ or from later sepsis. Fatal accidents frequently occur from persons discharging guns or pistols at others "in support", which they think they may do without danger, because the weapons are merely loaded with a "blank". A wad may penetrate the body at 15-20 feet."
19. There is no doubt that a wad can enter the body if a shot is fired from a close range but we do not feel convinced, by any means that 3 wads found in the body of the deceased could be the result of one shot, if a shot is fired from a distance of 10-12 feet as stated by the P. Ws. Or even slightly less than that. No such inference can be drawn from the opinion expressed in Taylor's Principles and Practice of Medical Jurispru--dence. All that has been recorded is that a wad can enter the body from a distance of 15-20 feet. No authority has been cited before us that 3 wads coming out of one shot can enter the body. We are not unmindful of the fact that this may happen in case a shot is fired by placing the gun on the body of a person or from a distance of less than a foot, this situation cannot be put in consonance with the facts of the present case. The shot could have been fired from a close distance of less than a foot or by placing the gun on the body of the deceased only by a person who might be sitting with him and not by a person who was standing behind the tractor, and that also when the tractor was moving. In the circum--stances we find ourselves in agreement with the learned counsel for the appellants that the eye-witness account as stated in the dying declaration and by the eye-witnesses stands contradicted by the medical evidence.
20. The eye-witnesses in this case are admittedly related and inimical. Some incidents of murders, of attempt to murder of cases registered under section 376, P. P. C. And of security proceedings inter se the parties have been admitted during cross-examination by Muhammad Arif P. W. 6, first cousin of the deceased and by Saec Khan P. W. 8, an eye-witness and real brother of the deceased. It is clear from the evidence that relationship between both the parties was bitter, stretching over years and had given rise to many incidents. The statements of the witnesses, so inimical cannot be safely relied upon without independent corroboration, particularly when the account furnished by them is contradictory of the medical evidence. As has been discussed above the dying declaration in this case also stood contradicted by the medical evidence. In the ordinary circumstances the discrepancy in the statements of the two witnesses and the statement of the deceased regarding raising of lalkara by Falak Sher and Asghar appellants that the deceased be not spared and finished, stated H by the eyewitnesses, and raising of lalkara by all the three appellants that they will avenge the insult, recorded in the dying declaration, in view of the circumstances enumerated above also seems to be material and devalues the evidentiary value of the dying declaration and the eye--witnesses. It was held in Sher Bahadur and another v. The State that dying declaration of an interested person cannot be corroborated by the statement of another interested witness. In that case the father had made the dying declaration and the son who was injured in the occurrence had deposed the ocular account corroborating the statement o his father.
21. There is yet another aspect of the case. The occurrence was stated to have taken place at 8.00 p.m. The deceased according to the prosecution case was brought to the Police Post Baseerpur where he made statement at 10.40 p.m. He was produced before a doctor for medical examination and treatment at 11-30 a.m. On the next day at Hujra Shah Muqeem. If the deceased was at P. P.
Baseerpur at 10-40 p. m., the P. Ws. Who were relations of the deceased in spite of the help and assistance of the Police who were seized of the matter and before whom the deceased is stated to have appeared in injured condition, could not have afforded to keep the deceased without any medical aid for more 1 than 13 hours. This aspect of the case makes the assertion of the learned counsel for the complainant/State doubtful that the presence of the witnesses at the spot cannot be denied for the reason that the occurrence had taken place at an isolated place, and if the witnesses were not present with him, he could not have reached the Police Post within a short spa of two hours and 40 minutes.
For the above-enumerated reasons, doubts have arisen in our mind regarding the participation of the appellants in the occurrence. They are, therefore, given the benefit of doubt and acquitted. The sentence of death awarded to Munawar appellant is not confirmed.
Since we have not believed the prosecution evidence and have acquitted all the three appellants, giving them the benefit of doubt, the Crl. Revision praying for enhancement of the sentence of Falak Sher and Asghar reason--dents, stands dismissed.