' Syed Ghous Ali Shah, J.-- This appeal under section 410, Cr.P.C. From jail is directed against the judgment, dated 1st March, 1979, passed by the learned Sessions Judge, Jacobabad, whereby he convicted the appellant under section 302, P.P.C. And sentenced him to death and to pay a fine of Rs,1,000 or in default of payment of fine to suffer R.I. For one year more. The matter is also before us for confirmation of sentence of death passed on the appellant. We shall dispose of the appeal as well as murder reference by this judgment.
2. The facts of the case are that one Arbab son of Haji Manjhi, by caste Jafferi, resident of Own Houses, Deh Jhangi-Wah, Taluka Thul of District Jacobabad, lodged a F.I.R. On 25th May, 1977 at 4- 00 a.m. At Police Station Thul of District Jacobabad, which reads as under:-- "Complaint is that Bagoo son of Choil, Jafferi owns about 30 Jarebs of land in Deh Jhangi Wah, which was purchased by him about a year ago from Chang and Shakal Jafferi. I and my brother Ghulam Nabi also own about 100 Jarebs of land in the said Deh. Our land and that of Bagoo have a common watercourse. My brother Ghulam Nabi has refused to allow water to Bagoo from this watercourse, and asked him to get his own watercourse granted as he will not allow him to take water from his Wahi for irrigation of land and he closed this watercourse. Due to this, accused was annoyed. At about 10-00 p.m. I and my brother Ghulam Nabi were going to Amir Bux Jafferi in connection with private work. When we passed nearby a cart-track in between the houses of Balooch Jafferi and Daud Banglani, Bagoo son of Choil Jafferi, (2) Duro son of unknown Banglani, both armed with guns and (3) Sadiq son of Rano Banglani all residents of Deh Jhangi Wah, came there. Bagoo challenged us and enquired whether we are going to open the watercourse or not but Ghulam Nabi refused to open it. Upon which Bago Jafferi and Duro Banglani fired their guns at Ghulam Nabi which hit Ghulam Nabi at his left hand and on left side of abdomen. He fell down. We raised cries. On cries and gun reports Lal son of Zahro Jafferi came there running, who also saw the accused persons running away, and identified them. Then we brought injured Ghulam Nabi to the house, from where he has been carried in a bullock cart to Mirpur Hospital for treatment. He has been admitted there and his condition is serious. Now I have come for report that this incident appears to have taken place at the instance of Amanullah, Hassan and Zainuddin. Justice be done."
3. The F.I.R. Exh.7 was recorded by Muhammad Khan A.S.I. Of Police Station Thul, who after recording it, took Head Munshi and Second Class Magistrate Thul to Mirpur Dispensary where Ghulam Nabi injured was reported to be in serious condition. The Head Munshi and Second Class Magistrate recorded the dying declaration of Ghulam Nabi in presence of Mashirs Muham.Aad Usman and Mir Khan. He also prepared a memo, of injuries Exh.15 on. Person of Ghulam Nabi and gave such letter to the medical officer for his examination and certificate. He also secured a blood-stained shirt which was on person of Ghulam Nabi in presence of same Mashirs. He then proceeded to scene of offence which was shown to him by the complainant. He secured blood-stained earth and one empty cartridge and put both of them in a sealed cover separately. He also found a trail of blood from the "vardat" to the house of the injured. He secured the blood-stained earth and prepared such a Mashirnama of scene of offence Exh.16 in presence of same Mashirs. He then examined P.Ws. Baloch, Arsala, Manjhi and Lal Bux. He then took the same Mashirs to the house of the appellant but it was lying vacant. He made search of the house in presence of the same Mashirs and prepared such Mashirnama. It was on 2-6-1977, when he got spy information that the appellant was available in his house. He took the police staff and Mashirs Muhammad Usman and Mir Khan and went to the house of the accused and arrested him from his house and prepared such Mashirnama Exh.17. The appellant voluntarily produced his licensed gun from his box in his house and also a licence of the gun in presence of same Mashirs. He secured the gun and put it in a sealed cover and prepared such Mashirnama Exh.18. It was on 11-6-1977, when P.W. Manjhi Khan came to him and gave him a letter of Hyderabad Police Station informing him about death of Ghulam Nabi in the Hyderabad hospital which has been produced and exhibited as Exh.34. He then changed the section of offence to 302, P.P.C. He also got 164, Cr.P.C. Statements of P.Ws. Recorded on 15-6-1977, and handed over the case papers to S.H.O. Who challaned the accused in the Court.
He had sent the blood-stained earth, empty cartridge and the gun to the experts.
4. The prosecution case is mainly based on ocular testimony consisting of evidence of complainant, corroborative evidence of Baloch P.W.4, Manjhi Khan P.W.5 and P.W. Lal Bux, evidence of motive, dying declaration of the deceased Ghulam Nabi before P.Ws. And also before Head Munshi and Second Class Magistrate, Medical Evidence, recoveries of empty from the Vardat and licensed gun from the accused Began and report of the Ballistic Expert.
5. The accused however denied all the allegations against him and a, claimed to be innocent. He has further stated that he has been involved in this case by the complainant who wanted to purchase his land for which he had asked him not to purchase it. It was on account of it that they were annoyed with him and due to that enmity he has been falsely implicated. He however did not examine any one in defence.
6. As far as death of Ghulam Nabi is concerned, it has not been disputed that he received gun-shot injuries on the day and place of incident as stated in the F.I.R. And died as a result of it in the hospital at Hyderabad. Dr. Santoram, Incharge Medical Officer of Rural Health Centre, Mirpur Buriro, Taluka Thut, who examined the deceased in the first instance has been examined. He has stated that there were foe' injuries on person of the deceased when he received him in the hospital out of them three were caused by discharge from firearm such as a gun while fourth injury was caused by hard and blunt substance such as piece of a brick or fall on the ground. The injury No,1 has beEn described to be dangerous. Dr. Abdul Majid who performed the autopsy has also been examined, who has deposed to as under:-- "On 1-6-1977, I was posted as Medical Officer in the Civil Hospital, Hyderabad. Injured Ghulam Nabi son of Manjhi Khan Jaffery was indoor patient in the hospital and he died on 31st May, 1977 in the hospital. On 1st June, 1977 head constable police of L.M.C.H Police Outpost referred the dead body to me for post-mortem examination. I started the post-mortem at 8-30 a.m. And finished it at 10-00 a.m. The body Was of male Muslim, aged about 30. Years. The body was of average built. The body was identified by Manjhi Khan, the father of the deceased. Rigor-Mortis was present in the entire body. Post-mortem rigidity was present in the dependent parts of the body. On external examination I found the following injuries on the dead body:-
(1) Multiple pellet injuries about two milimeters in diameter each on lower part of the left chest left hypochondria of abdomen, left lumer region of the abdomen and left forearm. All these injuries were on front portion.
(2) Five inches long operation wound in the left side of the abdomen with two drains.
' On internal examination I found that paritonium cavity was full of blood. There were multiple perforations in large and small intestines. The pellets were recovered. There were two perforations in the stomach, remaining organs were normal.
' From the external as well as internal examination of the dead body, I am of the opinion that the death was due to shock and haemorrahge and also pariotonitis and toxemin caused by perforations in large and small intestines. The injury No,1 was, ante-mortem and appeared to have been caused by discharge from a firearm like a gun. It was sufficient in the ordinary course of nature to cause death. The internal damage was due to external injury. Injury No,2 was operation wound, done on the deceased in the hospital. The time between the death and post-mortem was about 12 hours and time between injuries and death would be about 8 days as alleged. I issued post-motet notes which I produce. They are Exh.37 and bear my signature."
7. The question for determination is whether Ghulam Nabi (deceased) received firearm injuries from the appellant or someone else? The prosecution in this regard has led ocular evidence of the complainant Arbab Jafferi P.W.2, corroborative evidence of Lal Bux P.W.3, Baloch P.W.4 and Haji Manhji, evidence of motive dying declaration recorded by Noor Muhammad, Head Munshi and IInd Class Magistrate, Medical evidence of Dr. Santoram and Dr. Abdul Majiq, recovery of empty from scene of offence and the licensed gun from the appellant, reports of the Ballistic Expert and the chemical examiner and evidence of Muhammad Khan P.W.11.
8. We would examine the ocular testimony and corroborative evidence In the first instance. The complainant Arbab who is brother of Ghulam Nabi deceased has stated that it was about 10 p.m.
When he and the deceased were going to the village of Amir Bux Jaffery which was situated at about one mile from their house to search for their missing goat. The appellant who was standing with a gun near the track asked the deceased if he would open the stream or not and on refusal.
From Ghulam Nabi, the appellant abused him and opened fire at him which hit him and he fell down and went unconscious. The complainant raised cries which attracted Lal Bux P.W.3 to the Vardat who arrived there and told the complainant that he had seen the accused running away with the gun. Ghulam Nabi (deceased) gained senses and he also told Lal Bux that accused had given him gun-shot injuries. Then Ghulam Nabi was taken to the house of Baloch which was nearby. The complainant as well as Ghulam Nabi narrated him facts on inquiry from him. Ghulam Nabi was then removed to the house of Lal Bux who thereafter went to the village of the complainant and brought Manjhi, and Arsala father and brother respectively of the complainant as well as the deceased who were informed of the facts of the incident. Lal bux P.W.3, Baloch P.W.4 and Manjhi Khan have more or less corroborated the version given by the complainant but there are variations in their evidence regarding the deceased being taken to the house of Lal Bux or to his own house, and also about dying declaration between evidence of P.W. Lal Bux and Manjhi Khan.
9. The motive has been shown to be a dispute between the appellant and the deceased over a common watercourse which used to feed the lands of the appellant as well as the deceased and the deceased having refused to allow water to the appellant from the said watercourse. The complainant has been supported on the point of motive by P.W. Baloch.
10. The dying declaration has been recorded by Noor Muhammad P.W.9 and it would be necessary to reproduce the dying declaration which is as under:- "Yesterday in the evening my goat "pahroo" was lost. At about 8 or 10 p.m. I and Arbab son of Manjhi Khan, left our house and went towards west in search of the goat (pahroo). On the way Bagoo, Dur Muhammad and Saaiq were standing. They asked us whether we were going to allow them to excavate the watercourse or not. I replied them that we will not allow the excavation. This conversation was between me and Baggan. I again said that I will not allow the excavation. Then he abused me and I also abused him. Bagoo and Dur Muhammad were carrying guns. Sadiq was armed with a hatchet. After some conversation, Bagoo fired one shot at me. After firing at me, all the three accused persons ran away. Dur Muhammad and Sadiq have not caused me any injury and two other persons ran away towards west to their houses. Then I and Arbab started for our houses. On the way Lal Bux Jafferi met us who enquired from me about the injuries. I informed him that Bagoo has caused me injuries. The pellets of the gun have hit me on left forearm below the elbow' joint and on left side of the abdomen. From there I went to the house of Lal Bux. Lal Bux went and informed the members of my house. My brother Arbab brought the bullock-cart and carried me to my house and from there I was taken to hospital. Arbab went to Thul police station for report after my admission in the hospital."
' Noor Muhammad Head Munshi and Ilnd Class Magistrate P.W.9 who recorded the dying declaration has stated before the trial Court that he had recorded the dying declaration of the deceased on 25-5-1977 in which the deceased had said that Bagan and Dur Muhammad had guns with them while Sadiq had a hatchet. Bagan fired one gun shot at him. He has admitted not to have specifically stated if the deceased admitted the dying declaration to be correct.
11. Dr. Santoram P.W.10 and Dr. Abdul Majid P.W.12 as already discussed above have proved injuries to be of a firearm and death of the deceased as a result of it.
12. The empty secured from the scene of offence and the licensed gun produced by the accused were sent to the Ballistic Expert by the police which were received by the Expert on 28-9-1977 and his report Exh.23 shows that the crime-empty in question was fired from the gun belonging to the appellant. The report of the Chemical Examiner Exh.24 also shows that the earth secured from "Vardat" was stained with human blood.
13. Mr. Murtaza Hussain, the learned counsel appearing for the pauper appellant has contended that it was an unwitnessed.Crime for which F.I.R. Has been lodged after about 6 hours delay though police station was at a distance of about seven miles. It shows that F.I.R. Has been lodged after consultations and deliberations, otherwise there was no reason to delay it. Therefore it's valueless and mention of name of the appellant in such a F.I.R. Is of no consequence. The names of appellant Bagoo. Duroo and Sadiq were given only on suspicion. Though specific part of firing at the deceased was given to Duroo and it was also shown that firearm shot of Duroo hit the deceased, still when Duroo and Sadiq were let off by police during investigation of the case no steps were taken by complainant to pursue his case by filing a direct complaint against them. Moreover there are inherent infirmities in the F.I.R. And story of "missing goat" was a false one as it was not mentioned in the F.I.R. And therefore a subsequent improvement of the case which cannot be accepted.
' The names of Duroo and Sadiq were also a result of previous enmity and their names finding place in the dying declaration of the deceased cast shadow of doubt even on the dying declaration also. Moreover the learned Magistrate who recorded the dying declaration has failed to give his certificate as required by section 364, Cr.P.C. Apart from failure of certificate under section 364, Cr.P.C. The dying declaration is also a belated one and no reliance can be placed on it. In Rehmat Bakhsh's case reported in 1977 P Cr. L J 1292 Part II, no reliance was placed on such a dying declaration.
' The learned counsel has further contended that evidence of motive is not worthy of credence. The motive itself is far-fetched one and absolutely of no credence. As far as report of the Ballistic Expert is concerned, the learned counsel for the appellant has contended that the gun and the empty cartridge were secured and sealed on 2-6-1977 and 25-5-1977 respectively whereas the same have been received by the Ballistic Expert on 28-9-1977 i,e, after a period of three months and twenty-six days. There is absolutely no explanation coming from the prosecution as to why the gun and empty were sent after such a delay. There is also no explanation as to the place and manner in which those parcels containing gun and the empty were kept during this long period. He has relied upon 1969 SCMR 714, where their Lordships of the Supreme Court did not accept the positive opinion of the Expert.
14. Mr. Jalaluddin Baloch, the learned counsel for the State has on the other hand contended that the enmity between the parties is not of such a nature so as to implicate the appellant falsely or substitute him for the real culprit. Actually there is no grievance on the part of the appellant against the deceased who did not allow him to use the water-course which was used by him in the past.
Therefore the appellant had a strong reason to kill him. He has supported the conviction but has pointed out that there are mitigating circumstances for lesser penalty as the appellant and the deceased had met on the road and there was exchange of hot words before the appellant fired at the deceased.
15. We have considered the contentions of the learned counsel for the appellant as well as State.
We have examined the ocular testimony and the corroborative evidence keeping in view the F.I.R.
And the dying declaration made by the deceased. The complainant Arbab P.W.2 has stated in his F.I.R. That while they were going nearby a cart-track in between the houses of Baloch Jafferi and Daud Banglani, the appellant Bag= son of Choi! .Jafferi and Duroo son of unknown Banglani, both armed with guns and Sadiq son of Rano Banglani, came there. The appellant Bagoo challenged them and inquired whether they were going to open the watercourse or not to which Ghulam Nabi (deceased) replied refusing to open it. Upon this the appellant and Duroo fired their guns at Ghulam Nabi which hit Ghulam Nabi at his left hand and on left side of abdomen, and he fell down.
They raised cries which attracted Lai Bux son of Zahro Jafferi, who also saw the accused running away and also identified them. The complainant again in the trial Court has stated that he did not mention names of Dur Muhammad and Sadiq as the culprits in the F.I.R. It would thus appear that he has given complete go-bye to what he stated for Dur Muhammad and Sadiq in the F.I.R. It would be very difficult for us to place reliance on such a testimony of the complainant. Apart from the fact that the complainant is real brother of the deceased, not convincing reasons have been shown if the complainant actually accompanied the deceased at the relevant time when he was fired at on the scene of offence at about 10-00 p.m. The reason advanced by the complainant for his company with the deceased has been shown that their one goat was missing and they were going in order to search it at the village of Amir Bux which was situated at about one mile or so away from their village. Actually there is no mention of missing goat in the F.I.R. Or that the complainant and the deceased were going to search it. The reason for such a visit to village of Amir Bux Jafferi has been shown to be a private work.
' We have also examined evidence of Lal Bux P.W.3, Haji Manjhi P.W.5 and Baloch P.W.4, who are corroborative witnesses. La! Bux P.W.3 is husband of the sister of the deceased and it is clear from his evidence that he was a chance witness who found Ghulam Nabi lying injured and the complainant Arbab standing at the scene of offence. He has also given the reason of his presence to be inquiry about the missing goat of the complainant for which he had gone to "dera" at about sunset time. Though Nawab, Jhooro and other persons were present in the "dera" but he did not enquire from any one of them about the missing goat. He has also admitted that people from "dera" did not come to Vardat on gun report in spite of the fact that "dera" was only intervened by one survey No, He has also admitted that Wahid Bux Jakhrani, some Channas and other persons had also collected at their house after the incident but none of them has even been cited as a witness in the case. Moreover he has stated that he saw the appellant running away with a gun in his hand. It is admittedly a dark night even according to Baloch P.W.4 and it is not known as to how he identified the appellant in a dark night when no source of any light has been disclosed. We have given our anxious thought to evidence of this witness and we are of the view that he was not present at Vardat shortly after occurrence. He has been set up and his version therefore cannot be accepted. Baloch P.W.4 is admittedly a relative of the deceased and resides about one survey No, away from the scene of offence. He has stated that he did not come to the Vardat at the time of incident. He has otherwise tried to corroborate what has been stated by the complainant Arbab and P.W. Lal Bux. It does not however, inspire confidence if he has actually come on Vardat.
' The last corroborative witness is Haji Manjhi P.W.5, who is father of the deceased. He has reached on the scene of offence after receiving information of the incident through Lal Bux. He has also tried to corroborate the versions of the complainant as well as Lal Bux still certain admissions on his part are such that his evidence cannot be accepted. For instance he has said that the goat in question was missing one day prior to the incident and that they had suspected Duroo and Sadiq for its removal. His statement recorded under section 164, Cr.P.C. Has also been brought on the record in which he has stated that the complainant Arbab gave names of Duroo and Sadiq in the F.I.R. Due to suspicion of theft of goat. It is very difficult to rely on testimony of such a witness.
16. Now we will deal with the dying declaration of the deceased. We have already said above that names of Duroo and Sadiq were mentioned in the F.I.R., by the complainant and specific part of firing at the deceased was also attributed to Duroo which was subsequently not pursued by the complainant. Actually none of the corroborative witnesses have supported the case of the complainant as put in by him in the F.I.R., regarding participation of Duroo and Sadiq Banglani. It is very unfortunate to note that the deceased in his dying declaration has also said that while he and the complainant Arbab were going in search of their goat, Bagoo (appellant), Dur Muhammad and Sadiq were standing on the way. They asked them whether they were going to allow excavation of the watercourse or not. The deceased to this replied that they would not allow the excavation. This conversation took place between the deceased and the appellant. The deceased again repeated that he would not allow the excavation. Then the appellant abused him and deceased also abused him in return. The appellant Bagoo and Dur Muhammad were carrying guns and Sadiq was armed with a hatchet. It was after this that Bagoo fired a shot at the deceased and after firing it all the three ran away. The mention of names of Duroo and Sadiq in the dying declaration casts shadow of doubt if it was actually made by the deceased or if he made it without anybody's suggestion. It is even otherwise a weaker type of evidence being not subject to cross-examination. There is no doubt that the statute has attached sanctity to it but it could only be respected and even a conviction can be based on it if it had been consistent with other circumstances available on the record. We doubt its' authenticity and therefore do not accept it under the circumstances of the case. After disbelieving ocular testimony, corroborative evidence and dying declaration, we are of this view that the offence no doubt was an unwitnessed one. It is very sad that even dying declaration has been recorded more or less on basis of facts shown in the F.I.R., by the complainant Arbab. The allegations against Duroo and Sadiq have been subsequently not substantiated by the P.Ws. And even the complainant himself has not supported prosecution case on this point. Such evidence would not be of any value and cannot be accepted and made basis for conviction of the appellant. When all the above three pieces of evidence i,e, ocular testimony, corroborative evidence and dying declaration fail, we are left with recoveries of empty and the guns from the appellant supported by positive report. Of the Ballistic Expert. We do not consider this would be of any help to the prosecution after failure of ocular testimony, corroborative evidence and the dying declaration. Even otherwise the gun and the empty have been sent to the Ballistic Expert after three months and twenty-six days and there is no explanation for this delay and such opinion of the expert cannot be accepted.
17. In the result we do not accept the reference for confirmation of sentence of death passed on the appellant and instead accept his appeal by giving him benefit of doubt. Thus conviction and sentences awarded to him by the trial Court are set aside and the appellant is acquitted. He shall be set at liberty if he is not required in any other case.