' RUSTAM S. SIDHWA, J.-Amir son of Illyas (hereinafter to be referred to as "Amir Haral") and Amir son of-Sultan (hereinafter to be referred to as "Amir Baroka") were tried by an Additional Sessions Judge of Faisalabad under section 302/34, P. P. C. For the murder of Mst. Halima, deceased, and convicted for the said offence. Amir Baroka was sentenced to death, subject to confirmation by this Court, and to pay a fine of Rs, 2,000, or in default of payment thereof to suffer one year's rigorous imprisonment and Amir Haral was sentenced to life imprisonment and to pay a fine of Rs, 5,000, or in default thereof to suffer further rigorous imprisonment for two years. Half of the fine, if realized, was ordered to. Be .Paid to the legal heirs of Mst. Halima, deceased, as compensation. The two appeals (Cr. A. No, 649 of 1981 and Cr. A. No, 697 of 1981) preferred by the two convicts against their conviction and sentences, the reference (M. R. No, 14 of 1982) submitted by the learned trial Judge for the confirmation of the death sentence of Amir Baroka and the private revision (Cr. R. 657 of 1981) filed by Shahmand Ali for the fine imposed upon Amir Baroka to be enhenced and the sentence imposed upon .Amir Haral to be converted to death, are all now before us for disposal.
2. The brief facts of the case, as disclosed by Shahmand P. W. 8 in his F.I.R. Exh. P. H. Are that on 6th March, 1980 at 7-30 p. m. He was present at his house when Amir Haral, accused, resident. Of Chak No, 191/RB, came there and inquired from him about his brother Muhammad Yar alias Kala, whereupon he informed the accused that he had gone to Sargodha. Amir Haral, accused, then inquired from him about Mst. Halima, deceased, and he told him that she had gone alongwith Mst.
Bibi Rani P. W. 9 to the shop of Muhammad son of Barkha for getting tea leaves, whereupon the accused left. Since he suspected some foul play, he followed the accused and found him entering the baithak of Memora son of Shahabal. Some time later, he then returned to his baithak. After a while, he heard the report of a fire shot Mst. Sabiran, his niece, told him that she had also heard the same and that people were going there. He therefore, followed them. When he reached near the house of Mohabbit son of Daula he saw Mst. Halima, deceased, lying on the ground in the street. On his inquiry, she told him that when she was going towards the shop, Amir Haral, accused, resident of Chak No, 191/R.B. And Amir Baroka, accused, resident of Chak No, 188/R.B. Were following her. Amir Haral, accused, told his co-accused Amir Baroka, that she was Halima and he should fire at her, whereupon Amir Baroka, accused, who was armed with a '12 bore carbine, fired at her, which hit her on her shoulder and right side of her chest. She further told the complainant that she had identified both the accused, that after firing at her both the accused persons made good their escape and that she had staggered for some 'distance before falling. Hearing the report of fire, Ata son of Jag, Caste Bar (given up P. W.) and Maqbool P. W. 10, who were present at a shop a few paces away, also arrived there and saw the accused persons running away. Many persons collected at the spot.
Mst. Halima, deceased, was carried to Civil Hospital, Chak Jhumra, whereafter she was taken to D.
H. Q. Hospital, Faisalabad, on the advice of M. O. Chak Jhumra.
' The motive for the commission of crime charged was that ten/twelve days prior to the occurrence, Amir Haral, accused, had asked Muhammad Yar, brother of the complainant, and Mst.
Halima, deceased, to hand over her daughters to her in-laws, whereupon Mst. Halima deceased, had turned out Amir Haral, accused, from the house after insulting him, who, while leaving had threatened Mst. Halima, deceased, with dire consequences for having insulted him in that manner and for this reason Amir Haral and Amir Baroka, accused, had made a murderous assault upon Mst. Halima.
3. On the following day i. e, 7th March, 1980, Shahmand Ali P. W. 8 proceeded to Police Station Chak Jhumra, where he lodged F. I. R. Exh. P. H. At 7-35 a. m., which was recorded by Abdul Hamid Khan S. I, P.W.
11. The investigating officer then proceeded to the spot and took into possession blood-stained earth vide memo. P. C.
4. The same day at 12-30 a. m., Dr. Imtiaz Ahmad Gill P. W. 6 examined Mst. Halima Bibi, deceased, and found the following injuries on her person :
(1) Five fire-arms wounds 1 cm, x 3/4 cm. Each on the right scapular regions upper.
(2) A fire-arm wound 1 cm. x 1 cm. On the right shoulder deltoid region.
(3) A fire-arm wound 3/4 cm. x 1/2 cm. On the right pectoral region.
(4) A fire-arm wound 3/4 cm. x I cm. On the right upper arm.
(5) An abrasion 3i cm. x cm. On the right shoulder. The pellet appeared to have grazed.
(6) A fire-arm wound 1 cm. x 3/4 cm. On the right supra clavicular fossa.
(7) A fire-arm wound 1 cm x 1 cm below the right lower jaw.
' The injured was pulseless, cold and clamy. The condition of the patient was serious. X-Ray of the chest was advised and all the injuries were kept under observation. All the injuries were caused by fire-arm and were of about six hours duration. At 11-15 a. m. The same day, the deceased died in the hospital.
5. On 8th March, 1980, the investigating officer proceeded to the hospital and after preparing the necessary papers, sent the dead body for post-mortem examination. Dr. Imtiaz. Ahmad Gill P. W. 6 conducted the post-mortem examination on the dead body of Mst. Halima, deceased, at 11-30 a. m. And found the same injuries on her dead body which he had found earlier when he had conducted the medical examination. He also found that injuries Nos.
2. 3 and 6 were exit wounds. He removed one pellet from under the skin of the chin, one from under the right breast and one from the front of right shoulder. Death was due to shock and haemorrhage due to injury No, 1, which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire-arm. The time between injuries and death was twenty-four hours a thirty-six hours and that between death and post-mortem examination about twelve hours. The doctor also found injury No, 7 to be an entry wound and injury No, 5 to be the result of grazing. He also found that injuries Nos. 4, 5 and 7 could only be caused by an assailant from the front or side, but not from behihd.
6. On 12th March, 1980, Amir Haral, accused, was arrested and on 19th March, 1980, Amir Baroka, accused, was arrested by the Investigating Officer.
7. On 23rd March, 1980, Amir Baroka, accused, led to the recovery of a carbine P. 8 with an empty P.
9 in its chamber from a bharoli inside his house, which was taken into possession vide memo. P. G.
In the presence of Ghaus P. W. 7, Abdul Hamid Khan S. I. P. W. 11 and Noor Muhammad (given up P.
W.).
8. After completing the necessary investigation, the challan against the accused was sent up.
9. At the trial, the prosecution produced Shahmand P. 8 and Bibi Rani P. W. 9 to prove the motive, Shahmand P. W. 8 in proof of the Dying Declaration made by Mst. Halima, deceased, Mst. Bibi Rani P. W. 9 and Maqbool Ahmad P. W. 10 in support of the ocular account, Ghaus P. W. 7 and Abdul Hamid Khan S.-I. P. W. 11 in proof of the recoveries and Dr. Imtiaz Ahmad Gill P. W. 6 to corroborate the medical testimony. Both the accused denied all the accusations that were levelled against them, including the recovery alleged to have been made by Amir Baroka, accused. Amir Haral, accused, made the following submission in his statement under section 342, Cr. P. C.
"Since deceased, my wife's brother was elected as M.P.A. And during those elections Ghulam Hussain P. W. And Malla Lambardar opposed him. The wife of Malla was a polling agent in that election against Mehr Muhammad Ali. On the death of Mehr Muhammad Ali his younger brother Mehr Muhammad Munir was elected as M. P. A. And in this election also Ghulam Hussain was a candidate for the office of Lambardar in the village. Mehr Muhammad Munir opposed Ghulam Hussain in that matter and used his good offices in getting the opponent Ghulam Muhammad appointed as Lambardar. Muhammad Siddique, husband of Mst. Halima deceased moved an application under the Marriage Laws, for permission to marry a second wife. Mehr Muhammad Munir in his capacity as M. P. A. Was the Chairman of the Council which had to allow the said application of Muhammad Siddique. Mehr Muhammad Munir allowed Muhammad Siddique to marry a second wife Apart from this I am an employee of WAPDA working as Line Superintendent at Chak Jhumra. Maqbool and Ghulam Hussain P. Ws. Had made applications for the installation of Electricity in their respective houses. The electricity has not been installed till now. They have been under the impression that, I had been opposing their applications for electricity. Mst. Daulan wife of Malla is a woman of immoral character. These peoples got a false impression against me that she had been visiting me at Chak Jhumra.
' I take no interest in the politics of village. There could be no occasion for me having approached Mst. Halima for the restoration of her daughters to their father. The whole of the story of motive and my alleged visit to the house of Mst. Halima on the night of occurrence is a concoction made at the instance of Ghulam Hussain and Malla, The abadi of Chak 191 where I live is separate from the abadi of the Bars where Mst. Halima and her parents and present in-law used to live. There are Lambardars, members Union Council and other respectables of that abadi, who could have affected any conciliation, if at all between Mst. Halima and her husband. I had absolutely no claims on Mst. Halima or her brothers which could have prompted me to appoach her for the restoration of her daughters to their father. As a matter of fact Mst. Halima was not known to me before the murder.
' Amir co-accused is absolutely stranger to me. I have no connection whatsoever, either my relationship or friendly with the co-accused. He is a Kharal by caste and resident of another village.
Mst. Khatoon is daughter of Qaim who is my real paternal uncle. This Khatoon appeared as a prosecution witness in a murder case against my co-accused Amir and his brother. The only common thing which Amir and I have is that the Bars of the village 191/R. B. Are against us on account of different reasons. Ghulam Hussain and Malla are the persons who are playing from behind the scene to involve me in this murder case. It is Ghulam Hussain who has engaged a lawyer and is spending money in this case. Produce Exh, D. C. a certified copy of the statement of my cousin Mst. Khatoon which she made in the murder case against Amir son of Sultan and his brother. I also produce a certified copy of the pedigree table Exh. D.D. Showing Mst. Khatoon to be my first cousin. The certificate Exh. D.E. Has been issued by the S.D.O. WAPDA showing that that there is no electric connection in the name of Malla son of Rehman Lambardar of Chak No, 191/R.B.
' Amir Baroka accused made the following submission in his statement under section 342, Cr. P. C. : - "My village is at a distance of about three miles from the place of occurrence. I did not know Mst.
Halima deceased and the people of her village also did not know me except the Bars P. Ws. Who are inimical towards me. Daulat and Muhammad sons of Ghulam are maternal-cousins of Shahmand maternal-uncle of Malla P. W. Some time before the present occurrence they had beaten me and I had reported the matter to the Police and got them challaned. They were sentenced to suffer two years' R. I. Each. Shahmand is the first cousin of Malla Lambardar P. W. He reported against me and my uncles Massu, etc. For having illegally watered our fields from the canal. My uncles were made to pay tawan. I produce the copy of judgment Exh. D. F. We were in possession of some land in Square No,
38. Ghulam Hussain P. W. Malla Lambardar P. Ws. Made an application against us to get us ejected from land. There was a tree in the said land. Shahmand maternal-uncle of Malla P. W. Made an application against us for having cut the tree. Certified copy of that application is Exh. D. G. He got a case registered under section 379/411, P. P. C. Against my relatives. Certified copy of the challan is Exh. D. G/1. Noor Muhamtnad brother of Maqbool P. W.
Appeared as a witness against my relatives, certified copy of the statement is Exh. D. G./2.
Shahmand maternal-uncle of Malla P. W. Appeared as a witness in that case. Certified copy of his statement is Exh. D. G./3.
' Mst. Halima deceased was being kept by Malla Lambardar in his house. Her husband suspected that Malla Lambardar had illicit intimacy with Mst. Halima deceased. Malla P. W. Got a case registered agaist Siddique husband of Mst. Halima and his brothers and father. Certified copy of challan of that case is Exh. D. H. Mst. Halima appeared as a witness in that case and a certified copy of her statements Exh. D.H/1. Ata P. W. Of this case also appeared as a witness in that case.
Ahmad son of Jalla who is also closely related to Ghulam Hussain and Malla was cited as a witness in that case. Ghulam Hussain and Malla Lambardar have always been prosecuting that case for Mst. Halima.
' Mst. Halima was murdered in the dark. The occurrence was not witnessed by anybody. Ghulam Hussain and Malla Lambardar had got this case falsely registered against me and they are prosecuting the same. Ghulam Hussain P. W. Is present in Court even now.
' Amir son of Ilyas my co-accused is inimical towards me. Mehr Munir a close relative of my co- accused made an application against us for our ejectment from Square No,
38. One Anwar son of Thara was murdered. Thara was a cousin of Amir my co-accused. I and my relatives were challaned for the said murder. Mst. Khatoon a first cousin of Amir my co-accused appeared as a P.
W. Against me in the said murder case. I have been falsely involved in this case.
10. The learned trial Judge, relying upon the motive, the dying declaration, the ocular account, the recoveries and the medical testimony, convicted and sentenced both the accused, as stated in para 1 above.
11. We have heard the arguments of the learned counsel for the appellants the complainant, and the State and have also perused the record. The ocular testimony in this case is furnished by Mst.
Bibi Rani P. W. 9 and Maqbool Ahmad P. W.
10. The former is the daughter of Mst. Halima, deceased, whereas the letter is not related in any way to the complainant party. The presence of Mst. Bibi Rani P. W. 9 at the time of occurrence appears to be doubtful and we need not, therefore, labour in discussing her evidence at any length. In the F.
I. R. Exh. P. H. Lodged by Shahmand P. W. 8, though her name is given as the person who accompanied Mst. Halima, deceased, when she went to the bazar to buy tea-leaves, yet when he reached the spot immediately after the occurrence, her presence at or near the spot is not shown nor is any explanation offered as regards her absence. If she was with the deceased when the incident occurred, the would have been found present at the spot, or, if she had run away thereafter out of fear, some explanation of her absence would have been given. It should not be forgotten that the F. I. R. Exh. P. H. Was lodged twelve hours after the occurrence, by which time the complainant had gleaned all the facts. The total absence of any reference in the F. I. R. Exh. P. H.
About Mst. Bibi Rani P.W. 9 as having seen the occurrence or being found present at the spot when the complainant reached there, clearly shows that she was not present at the spot when the occurrence arose. The statement Exh. D.B. Made by Maqbool Ahmad P.W. 10 before the Investigating Officer on 7th March, 1980, one day after the occurrence, also does not refer to her presence at the spot. In these circumstances, we have no hesitation in rejecting her presence as an eye-witness.
This leaves us with the evidence of Maqbool Ahmad P.W.
10. His account of the occurrence is an exaggeration of what he stated earlier in Exh. D. B. To the police, which itself is an exaggeration of the complainant's version given in Exh. P. H. According to his own admission in cross.Examination, though he and his brothersowned two shops, one at Chak Jhumra and the other in Chak No, 119/R.B., he and his brothers ran the shop at Chak Jhumra, whereas his brothers alone ran the shop at Chak No, 119/R. B. Though the shop of Maqbool Ahmad P.W. 10 is shown at point No, 3 in site plan Exh. P.H, which is about 42 feet away from the place where the deceased was fired at, the presence of Maqbool Ahmad P. W. 10 at his shop on the night in question appears to be only fortuitous, as according to him, his brothers ran the shop in the village.
But even if we were to accept his presence, the question whether he was able to identify the two appellants appears to be doubtful. The occurrence occurred more than an hour after sunset. It is alleged that a bulb was burning at the corner of the dera of Malla Lambardar which was affixed to an iron pipe fifteen feet high. The said bulb is shown at point No, 5 in the site plan Exh. P. M., which would be about sixty-five feet away from the place of occurrence. However, there is no referrence,to the presence of the said light burning in the F.I. R. Exh. P. H. Or in the inquest report Exh.
P.K. There is also the certificate Exh. D. E. Of the S. D.
0. (E), Chak Jhumra, dated 17th October, 1981 on the record certifying that Malla Lambardar had no domestic connection for electricity in Chak No, 191/R:B, and that there was no street light in the said Chak, but, the same not having been properly proved, we cannot safely rely upon the same.
However, the fact remains that in the F. I.R. Exh. P. H. And in the inquest report Exh. P.K. After the first inspection of the spot was carried out, there is no reference to the electric light near the place of occurrence, which fact is not without significance. In addition, the further fact that there is a delay of about twelve hours in the lodgment of the F. I. R. Cannot be ignored. When the complainant took the deceased to the Civil Hospital, Chak,Jhumra, he was only a furlong away from the Police Station and he could have lodged the report. But what stands out a mile apart is that in the F. I. R. Exh. P, H, lodged by Shahmand Ali P. W. 8, the names of Maqbool Ahmad P, W. 10 and Atta (given up P. W.) are not referred as eye-witnesses, but as persons who, on hearing the report of fire after the incident occurred came out of their shop and saw the two appellants running away. From the cross-examination of Mst. Bibi Rani P. W, 9 it also appears that the thanedar had seen certain foot prints, which were preserved at the spot, and that a tracker apparently had been called who had told the thanedar that the same were of the two appellants. The police statement Exh, D B of Maqbool Ahmad P. W. 10 is an improvement over the version of Shahmand P.W. 8 as given in F. I. R Exh. P, H. And his evidence at the trial is a further improvement over his police statement Exh. D. B. In these circumstances, whatever, be his position, whether as a wajtakkar witness or as an eye- witness his, evidence cannot be accepted without corroboration.
12. It is the contention of both the appellants that the incident was a blind murder and that they have been falsely implicated at the instance of Malla Lambardar and Ghulam Hussain P. W. 5, who are Bars by caste. It is also their contention that as between themselves inter se they are inimical to each other and they could not have joined in the said venture, as there was nothing common between them to goad them to pool their resources and nothing was stated in the evidence even to show that they were friends, leaving aside being intimate at any higher level. In this connection, the statements made by the said two appellants before the Court under section 342, Cr. P. C. Was pressed. We now propose to examine how much of their assertions stands proved on the record.
Before we proceed to do so, we would like to record that the following relationship stands proved on the record. According to Ghulam Hussain P. W. 5 Maqbool Ahmad P. W. 10 was his maternal- cousin that Atta (given up P. W.) was his cousin in the 5th/6th degree; that Malla Lambardar (given up P. W.) was a cousin of Atta (given up P. W.) in the 5th/6th degree; that one Ghulam was maternal-uncle of Noor (given up P. W.); that the said Ghulam was married to the sister of Malla Lambardar (given up P. W); that one Shahmand son of Baig was a maternal uncle of Malla Lambardar (given up P. W.); and that one Shahmand son of Daulat was a first cousin of Malla Lambardar (given up P. W.). He further stated that Sultan, father of Amir Baroka, appellant, was first cousin of Lakhu and Massu and that the said Lakhu had a son named Amir. He further stated that he was the husband of the sister of Maqbool P. W. 10, that his sister was married to the elder brother of Maqbool P. W. 10; and that Amir Ahmad son of a Jalla was a son of a cousin of the said Maqbool P. W.
10. As regards Amir Haral, appellant, he stated that he was the sister's husband of Mehr Muhammad Ali, Advocate and M. P. A. And that Qasim was a paternal-uncle of the said Amir Haral, appellant. Shahmand P. W. In his evidence stated that Mst. Daulan was the wife of Malla Lambardar (given up P.W.). Maqbool P. W. 10 admitted that one Noor was his brother and that his grandfather and that of Ahmad of Jalla, were brothers. It is the case of Amir Haral, appellant, that there was election rivalry between Harals, on the one hand, and Ghulam Hussain P. W. 5 and Malla Lambardar (given up P. W), who were Bars by caste, on the other, as his brorher-in-law, Mehr Muhammad Ali, Advocate, had stood for the elections, in which election, Mst. Daulan, the wife of Malla Lambardar (given up P. W.), was a polling agent against his brother-in-law and that on the death of his brother-in-law, his son Mehr Muhammad Munir was elected as M. P. A. And in this election also the same rivalry subsisted. It is also his case that his brother-in-law used his good offices in getting one Ghulam Muhammad appointed as Lambardar as against Ghulam Hussain P. W.
5. None of these assertions has been admitted by any of the eye-witnesses, except that the dispute over Lambardari between Ghulam Hussain P. W. 5 and Ghulam Muhammad appears to be admitted on the record, but the fact that the appellant's brother-in-law had used his good offices is not proved. It is also the case of Amir Haral, appellant, that his brother-in-law Mehr Muhammad Munir in his capacity as Chairman of the council allowed Muhammad Siddique, the first husband of Mst. Halima, to take a second wife. This fact can be said to be impliedly proved as all M. P. As were Chairmen of the respective councils and Muhammad Siddique's second marriage is admitted. It is also the case of Amir Haral, appellant, that Ghulam Hussain P. W. 5 and Maqbool P. W. 10 had made applications for the installation of electricity in their respective houses and that as the electricity had not been installed, they were under the impression that he had been opposing their applications. The making of the applications stands admitted, though there is nothing to indicate that the witnesses harboured any against the appellant on that account. It is also the case of Amir Haral, appellant, that Amir Baroka, appellant, was not only a stranger to him but inimical, as one Mst. Khatoon daughter of Qasim, who was his real paternal-uncle, had appeared as a prosecution witness in a murder case against Amir Baroka, appellant, and his brother. The fact that Mst.
Khatoon is the daughter of Qaim is proved by pedigree table Exh. D. D; the other relationship stands proved by the evidence. The fact that Mst. Khatoon appeared as prosecution witness against Amir Baroka, appellant, and his brother Ahmad stands proved by certified copy of her statement Exh.
D.C. Given in the Sessions trial in the said case. Likewise, it is the case of Amir Baroka, appellant, that Daulat and Muhammad, sons of Ghulam, are maternal cousins of Shahmand, maternal-uncle of Malla Lambardar (given up P. W.) and that some time before the present occurrence they had beaten him, for which they were challaned and sentenced to suffer two years' rigorous imprisonment each. These facts do not stand proved, except the fact that a case is pending against the said Daulat and Muhammad. It is also the case of Amir Baroka, appellant, that Shahmand son of Daulat first cousin of Malla Lambardar(given up P. W), reported against him and his uncles Massu, etc., for stealing water, regarding which his uncles were made to pay fine. The imposition of the penalty against his uncles stands proved by judgment Exh. D. F. It is the case of this appellant that they were in possession of some land in Squre No, 38, in respect of which Ghulam Hussain P. W. 5 and Malla Lambardar (given up P. W) made an application against them for their eviction and Shahmand, maternal uncle of the said Malla Lambardar (given up P. W), also got registered a case against them for having cut a tree on the said land. The application having been made and the eviction having followed is admitted by Ghulam Hussain P. W.
5. The registration of the case relating to the tree is proved by the certified copy Exh. D.G. Of the application made by the said Shahmand in that connection, the certified bopy Ex h. D.G./1 of the challaa filed by the police in the said case, the certified copy Exh. D.G/2 of the evidence of Noor Muhammad (brother of Maqbool P. W. 10) and the certified copy Exh. D. G/3 of the evidence of Shahmand, maternal-uncle of Malla Lambardar (given-up P.W), given in the said case. Still further, it is the case of Amir Baroka, appellant that Mst. Halima, deceased, was being kept by Malla Lambardar (give up P.W), that Siddique, her husband, had suspected her illict intimacy with Malla Lambardar, that the said Lambardar got a case registered against Siddique and his brothers and father in which case Mst. Halima, deceased, and Ata (given up P. W.) appeared as witnesses and Ahmad son of Jalla, who is related to Ghulam Hussain P. W. 5 and the said Lambardar, was cited as a witness, though he was not procuced. The detention by Malla Lambardar of Mst. Halima, deceased, in his house and illicit intimacy with her, is not proved, but the other facts stand proved by the certified copy Exh. D. H. Of the challan lodged in the said case and the certified copy Exh. D.
H./1 of the statement of Mst. Halima, deceased, recorded therein. From this total evidence and surrounding circumstances, it is apparent that both the appellants are strangers inter se and have nothing in common, that they are inimically disposed to each other, that the Bars of the village are inimical to the relatives of Amir Baroka, appellant against whom they have been moving various applications and registring cases and that the Bars have had election rivalry against the Harals in particular, of which Amir Haral, appellant, is a member. It stands borne out from the evidence of Mst. Bibi Rani P. W. 9 that the baradari of Ghulam Hussain P. W. 5, who belongs to Bars by caste, had been coming to the Sessions Court to pursue the case in instance and that Ghulam Hussain P. W. 5 had engaged a prosecution counsel to prosecute the instant case. That both the appellants are under pressure in the case at the instance of the Bars of the village, is not totally without foundation. In this view of the matter, our earlier view that the evidence of Maqbool P. W. 10 requires corroboration stands further strengthened.
13. The corroboration in the instant case is offered by the dying declaration made by Mst. Halima, deceased, to Shahmand P.W. 8, the motive and the medical evidence. Since no crime empty was recovered from the spot, the recovery of the carbine P 8 at the instance of Amir Baroka, appellant, is not pressed into service. As regards the dying declaration, not Mich reliance can be placed on it.
The injuries on Mst. Halima, deceased, show that two shots were fired, one from the back, which accounts for the five pellet injuries on her left shoulder, which is described as injury No, 1 by the doctor, and a pellet which grazed her right shoulder, which is described as injury No, 5 and the second one from the front, which accounts for the pellet wound on the front of right shoulder, which is injury No, 4, and a pellet wound on the right cheek, which is injury No, 7, both of which pellets were recovered from the front of right shoulder and below the right lower jaw. Since the last two injuries were not deep, the second shot appears to have been fired from some distance. The shot described earlier and which was fired from the back produced three fire-arm wounds of exit, which appear to be injuries Nos. 2, 3 and 6 as described by the doctor in his post-mortem report Exh. P.P.
Since the pellets travelled through the body, the shot fired at the deceased from the back appears to have been from a very short range. The dying declaration of Mst. Halima deceased belies the medical testimony. According to her version of the case as given to Shahmand P. W. 8, Amir Baroka, appellant, fired one shot at her, which hit her right shoulder and right chest. Had the shot been fired from the right side, the exit wounds would have been on the left side of the chest, which is not so in the cases. Further, it is hardly believable that the deceased recognised the fire-arm used, but according to Shahmand P.W. 8, the stated that Amir Baroka, appellant, had used a 12-bore carbine According to Dr. Imtiaz Ahmad Gill P. W.
6. Since the right lung and the right scapula were damaged to a large extent, these injuries would have disabled the patient from speaking. Taking all these circumstances in consideration, we cannot be brought to believe that the deceased made the dying declaration, as alleged by Shahmand P. W.
8. And the said evidence must be rejected. The medical testimony, like the proverbial phrase "dead men tell no tales", does not tell us which injury was caused by which appellant in particular in the crime in instance. As already demonstrated above, the medical evidence belies the ocular testimony. The medical testimony, therefore, cannot be safely accepted as corroborative evidence.
The motive, by itself, cannot help us in any way. Even otherwise, the motive, as suggested, does not ring true. There is nothing on the record to show that Amir Haral, appellant, had so great a place amongst the villagers in Chak No, 191/R.B that he could be approached to use his good offices to bring about a compromise between Mst. Halima, deceased, and her husband Siddique in their dispute over their children. This evidence is shaky and not reliable and we cannot safely act on it.
14. The upshot of the above discussion is that the whole case against both the appellants is weak and shaky. The appellents are, therefore, G entitled to the benefit of boubt.
15. For the foregoing reasons, this appeal is accepted and the conviction and sentence of the appellants is set aside. They shall be set at liberty forthwith, if not required in any other case. Fines, if any recovered from them, shall be refunded to them.
16. The revision petition (Cr. R. No, 65741) filed by Shahmand Ali, complainant has no merit and is dismissed in limine.