' FAIZ MUHAMMAD KHAN, J.-- Pasal son of Baz Muhammad, aged 28 years, resident of Shah Pasand Kill, Tehsil Charsadda, District Peshawar, stood trial in the Court of Additional Sessions Judge, Charsadda on charges for having committed, on 15-10-1981 at about 11.00 a.m. In the limits of Teghan Ghani near Shah Pasand Killi, in the company of Masal, and absconding accused, and in furtherance of their common intention, murders of Raj Wali and Mst. Noorul Wara by firing at them.
The learned trial Judge having found the accused guilty of committing the murder of Raj Wali, sentenced him to death and also to pay a fine of Rs,5,000 or in default to suffer rigorous imprisonment For years. The learned trial Judge further directed that on realization of the fine imposed on the accused, Rs,2,000 shall be paid to the heirs of the deceased. As far as the murder of Mst. Noorul Wara was concerned, Pasal accused was not found guilty on that charge and he was, therefore, acquitted of that charge.
2. Pasal has appealed against his conviction and sentence. This appeal has been registered as Cr.A. No,74 of 1983. The learned Addl. Sessions Judge has referred the matter to this Court for confirmation of the death sentence awarded by him to the appellant, which has been registered as Murder Reference No,20 of 1983. The complainant (Dawar Khan) has filed Criminal Revision for the enhancement of the fine and for awarding heavy compensation to the heirs of the deceased, which has been registered as Cr. R. No,62 of 1983. All these matters, being connected, were together placed before the Court for hearing. On the date of hearing, however, Mr. Jan Muhammad, Advocate who filed Criminal Revision for the enhancement of the sentence of fine and compensation on behalf of Dawar Khan, made a statement at the Bar that according to the instructions received by him from his client the parties have compromised the matter and that he was, therefore, not to press the Criminal Revision. We would dispose of these matters by this single judgment.
3. The prosecution case, briefly stated, was that on the fateful day Raj Wali (deceased) wanted to go to Sugar Mills, Charsadda in order to purchase therefrom sugar-beet seed. For that purpose, it was alleged, he came to the house of his uncles, namely Bilal (P.W. 16) and Dawar Khan (P.W. Not produced). They all came to the road side. Raj Wali had to catch the bus and the others came to see him off. In the meantime, a bus arrived which was stopped and the deceased got into the bus, in which were already sitting Pasal and Masai accused. Since the parties had old blood feud, Raj Wall (deceased), on seeing the accused in the bus, decided to get down from the bus. While he was getting down from the bus, he was fired at by both the accused one shot each. The shot fired by Pasal accused hit Raj Wall while the shot fired by Masai (absconding accused) hit Mst. Noorul Wara, a woman sitting in the bus. The bus stopped and both the accused ran away. Bilal (P.W.16) and Dawar Khan brought cots for the injured who were placed on them and in the same bus they were taken to Police Station, Prang where Raj Wali, then injured, himself lodged the First Information Report (Exh.P.A.). Old blood feud was mentioned as motive for the crime. After recording the report and preparing the injury sheets, I.O. Directed the injured to be taken to Civil Hospital, Charsadda.
They were carried to the Hospital in the same bus, wherefrom they were referred to the Lady Reading Hospital, Peshawar. By then the relatives of Mst. Noorul Wara had also arrived in the Hospital. Two Suzuki vans were arranged for carrying the injured to the Lady Reading Hospital, Peshawar. Mst. Noorul Wara, however, succumbed to her injuries on way to Hospital but Raj Wali died in the Hospital after some days.
4. The post-mortem examination of Mst. Noorul Wara was conducted by Lady Dr. Chaman Ara on 15-10-1981 at 2.30 p.m. She found the following injuries on her person:- ' External Examination.
(1) Firearm injuries 8 inlets circular on the buttock near the anus left side size 1" x 1".
(2) Firearm injury on the right side of pelvis one pellet removed handed over to police.
' Internal Examination.
' Injury to pelvic bone and viscera. Pelvis is fractured.
' In the opinion of the Doctor, the death of Mst. Noorul Wara was caused by firearm injuries to pelvic, viscera leading to internal haemorrhage. The Lady Doctor testified to the injuries at the trial. The post-mortem report Exh.PH and the pictorial Exh.P.H./1 relating to Mst. Noorul Wara were exhibited in her statement. In cross-examination, Dr. Chaman Ara stated that the injury to Mst. Noorul Wara was caused "from the back side from downward to upward. The injury was from left side to right side.
This injury was caused with a shotgun". On re-examination, she further stated that the "injury could not be caused when the victim was sitting. However it could be caused when the victim was having one leg across the other and reclining on one side or while bending standing on legs."
5. During those days Dr.Habibur Rehman was posted as Medical Officer, Casualty Ward, Lady Reading Hospital, Peshawar. On 15-10-1981 at 12..50 p.m. He examined Raj Wali son of Muhammad Ayaz, resident of Nisata. He was brought to him for examination in injured condition by Muhammad Salim F.C. No,1427 of Police Station, Sardheri. On examination, the Doctor found the following injuries on the person of Raj Wali:--
1. Firearm injury with entry wound on right side chest posteriorly at the level of inferior angle of right scapula 3" x 1". Patient in respiratory distress. X-ray test was advised which revealed fracture of two ribs on right side and he was admitted in Surgical Ward.
' In the opinion of the Doctor, the injury was caused by firearm and the nature of injury was grievous. Raj Wali succumbed to his injuries on 14-11-1981 at L.40 p.m.
' The post-mortem examination of Raj Wali deceased was conducted by Dr. Tariq Anwar who testified to his post-mortem report Exh.P.J. And pictorial Exh.P.J./1. In doctor's opinion, the cause of death of Raj Wall, as mentioned in Exh.P.J., was firearm injury leading to fracture of spine that caused paraplegia. For paraplegia Minerva Jacket was applied. There was Hemothorax on the right side of chest that became infected and caused pyothorax which ultimately led to respiratory failure.,
6. Since Dr.Tariq Anwar and Dr.Habibur Rehman were found not to have been properly examined at the trial and the post-mortem examination conducted by Dr.Tariq Anwar was found to be sketchy, both of them were re-examined by this Court. In that connection the statement of Dr. Shafique Ahmad was also recorded who had produced the record of the Hospital relating to Raj Wall (deceased) and testified to the relevant entries made in that record. In his statement in this Court, Dr. Tariq Anwar who had conducted post-mortem examination of Raj Wali deceased, stated that on internal examination he found wall, ribs and cartilages injured, 8th and 9th ribs on the right side fractured, pleurae injured, right lung injured and full of foul smell and pus, left lung injured mildly and blood vessels injured. He further stated that he conducted the post-mortem examination of Raj Wali deceased on 14-11-1981 at 3.30 p.m.
7. Dr.Shafique Ahmad (C.W.2) who was examined in this Court along with the record, stated that according to the record of the Orthopadic Ward, Raj Wali was admitted in that Ward on 21-10-1981 but was relieved on 24-10-1981 after applying plaster on his ribs. He was directed to re-appear in the Hospital after three weeks if there had been any need. The photostat copies of the discharge slip of the Orthopadic Ward were brought on record and are Exh. C.W.2/1 and Exh. C.W.2/2. The record further revealed that Raj Wali (deceased) appeared in the Orthopadic O.P.D. On 1-11-1981 and the entry on the back of discharge certificate (Exh. C.W.2/2) indicated that he was admitted by the Doctor as an emergency case. His wound had become septic and was full of pus. From O.P.D he was admitted to the Ward. The visiting surgeon was immediately sent for, who after examination advised operation and Raj Wali was operated upon on 7-11-1981 and 600 cc pus was removed from his wound in that operation. He was again operated upon on 12-11-1981 and 180 cc pus was removed from his wound. The record further revealed that on 14-11-1981 he was again to be operated upon but due to his serious condition, the operation could not be performed and Raj Wali died the same day at 1.40 p.m. In cross-examination, Dr. Shafique Ahmad admitted that according to the record the retention of Raj Wali (deceased) in the Ward was not found necessary and he was, therefore, discharged from the Orthopadic Ward on 24-10-1981. The patient, according to the record, was prescribed (1) Baserol tablets, (2) Multive-vitamin tablets and (3) Ferrous sulphate. The doctor further stated that on the strength of discharge certificate he could say that no antibiotic medicine was prescribed for Raj Wali. The doctor also admitted that the wound could become septic on account of unhygienic surroundings/conditions/handling.
8. At the trial the prosecution relied on the F.I.R.-cum-dying declaration made by Raj Wall deceased, the ocular evidence and the evidence of motive furnished by Bilal (P.W.16), the medical evidence furnished by Dr. Habibur Rehman (P.W.15) and Dr. Tariq Anwar (P.W.2) and the circumstantial evidence, in the form of recoveries of incriminating articles, collected by the Investigating Agency. The plea taken up by the appellant was that of self-defence. He sought support in that respect from the first report made by him in the case registered vide F.I.R. No,268 at the same Police Station at his instance against Raj Wali deceased, Bilal (P.W.16) and Dawar Khan (P.W. Not produced). Support was also sought by the defence from the circumstantial evidence brought on record. The learned trial Judge, however, did not accept the defence version as true. In his judgment the prosecution had established its case against the appellant beyond any doubt.
The learned trial Judge, therefore, convicted and sentenced the appellant as already said.
9. M. Zahurul Haq, Bar-at-law, appeared on behalf of the appellant and Mian Muhammad Ajmal, Assistant Advocate-General appeared on behalf of the State. Though the complainant side had filed Revision Petition for enhancement of the punishment of fine and for awarding heavy compensation to the legal heirs of the deceased, but, as already said, Mr. Jan Muhammad Khan, Advocate, who had filed the Revision Petition, made a statement at the Bar that in view of the compromise effected between the legal heirs of the deceased and the accused party he had the instructions not to press the Revision Petition.
10. The first argument of the learned counsel for the appellant was that in the light of the statement of Dr. Shafique Ahmad (C.W.2) recorded by this Court, the offence allegedly committed by the appellant was not a culpable homicide, as defined in section 299, P.P.C., but it could, at the most, be an offence which fell under section 326, P.P.C. He further submitted that since the parties have effected a compromise, he would, therefore, request for a lenient view of the matter and for the acquittal of the appellant on the sentence already undergone. While making this submission the learned counsel pointed out that it was clear from the statement of Dr.Shafique Ahmad (C.W.2) and the record produced by him that Raj Wali deceased was admitted in the Orthopadic Ward of the Hospital on 21-10-81 and was discharged from the Ward on 24-10-81 by applying plaster on his wound. The deceased had again appeared in the Orthopedic OPD on 1--11-81 and his wound was then found septic and pus was found therein. He was admitted to the Ward and was operated upon twice but ultimately died on 14-11-81. The learned counsel argued that the deceased was discharged from the Orthopadic Ward on 24-10-81 as relieved because his retention in the Ward was not found necessary by the doctors. The medicines prescribed, the learned counsel submitted, were tonics and no anti-biotic medicine was prescribed. The learned counsel contended that the wound of Raj Wali deceased had become septic because of the unhygienic surroundings/conditions/handling in which he was made to live by the negligence of the doctors who treated Raj Wali deceased and discharged him from the Ward sending him home in such unhygienic surroundings/ conditions. According to the learned counsel the cause of death of Raj Wali was the negligent handling of his wound by the doctors and his discharge from the ward resulting in his wound becoming septic. The learned counsel, therefore, contended that since the death of Raj Wali was not the direct result of the injury received by him at the hands of the appellant, the offence allegedly committed by the appellant could only fall under section 326, P.P.C.
11. We are afraid, this was not the correct approach to the case. By making these submissions the learned counsel for the appellant totally disregarded the statement made by Dr. Tariq Anwar and the post-mortem examination report of the deceased. It is on the record that the internal examination of the dead body of the deceased revealed wall, ribs and cartilages injured, 8th and 9th ribs on the right side fractured, pleasure injured, right lung injured and full of foul smell and pus, left lung mildly injured and blood vessels also injured. Such injuries were received by the deceased in consequence of the shot fired by the appellant and these were the injuries which, in our view, became the cause of death of the deceased. We are, therefore, of the view that the death of Raj Wali deceased was the direct result of the injuries which he had received by the shot fired at him by the appellant. The offence committed, therefore, was culpable-homicide. This argument of the learned counsel for the appellant was, therefore, without substance.
12. The next argument of the learned counsel for the appellant was that there were two separate versions before the Court; one of the prosecution that the appellant had fired at Raj Wali deceased with an intention to kill him and the other of the defence that the appellant had fired at Raj Wali deceased in exercise of the right of self-defence. The learned counsel contended that the defence brought on record sufficient material to prove that the shot fired by the appellant which hit Raj Wali deceased was in exercise of the right of self-defence. He argued that the circumstantial and the medical evidence led at the trial supported the defence version and not the prosecution story. The learned counsel further contended that the law was well-settled that the initial burden always lies on the prosecution to prove beyond reasonable doubt the guilt of the accused and that the accused while claiming that his case falls under any exception has not to prove his case in the same manner in which the prosecution has to prove its case, and that if the accused is able to create a reasonable doubt in the prosecution story or is able to show that in the circumstances of the case the defence version could probably be true, then the benefit of doubt would go to him leading to his acquittal; Referring to the evidence brought on record, the learned counsel for the appellant argued that the F.I.R.-cum-dying declaration made by Raj Wali deceased was unreliable as the story mentioned therein did not have the support of the other prosecution evidence brought on record. As to the statement of Bilal (P.W.16) the learned counsel pointed out that such statement corning out of the mouth of a person who had an established blood feud enmity with the accused party could not be relied upon when it was not supported by any other evidence led at the trial. In regard to the defence version the learned counsel for the appellant contended that F.I.R. No,268 was lodged by the appellant himself in which he claimed that while he was travelling in a bus to go to Charsadda, Raj Wali (deceased) and Dawar Khan, who along with Bilal (P.W.16) were standing on the road side, fired one shot each on him which, however, did not hit him but a woman sitting in the bus got hit and that in exercise of the right of self-defence he fired two shots at them with his five shot rifle, one of which hit Raj Wali (deceased). The appellant also gave similar statement when he was examined by the Court under section 342, Cr.P.C. The learned counsel contended that the defence story was fully supported by the circumstantial evidence brought on record.
13. In this case prosecution charged two persons for intentionally committing the homicide of Mst.
Noorul Wara and Raj Wali. Out of the asailants Masal allegedly absconded and is still absconding.
Only Pasal (accused-appellant) was tried for the murders of Mst. Noorul Wara and Raj Wali. He was acquitted of the charge of murdering Mst. Noorul Wara but was convicted for committing the murder of Raj Wali. According to the prosecution case the shot fired by Masal, the absconding accused, had fatally hit Mst. Noorul Wara. Masal, the absconding accused, would be tried when apprehended. We are conscious of the fact that any expression made with respect to the prosecution case in so far as the injury received by Mst. Noorul Wara was concerned, would certainly have effect on the trial of Masal, the absconding accused. Unfortunately, however, in order to attend to the defence version, we cannot avoid discussing the prosecution case in that respect.
14. The prosecution version was that Raj Wali deceased was fired at by the appellant. The prosecution further claimed that because of the old blood feud the appellant had fired at Raj Wall deceased with a clear intention to kill him. In support of its case, as already mentioned, the first piece of evidence relied upon by the prosecution at the trial was F.I.R.-cum-dying declaration made by Raj Wali deceased. In F.I.R.-cum-dying declaration Raj Wali (deceased) stated that he was travelling from his village to Charsadda in bus No,AD-4785, in which were also travelling Masal (absconding accused) and Pasal (appellant) sons of Baz, residents of Shah Pasand Koroona, that when the bus reached near 'Taigh Gani', Masal (absconding accused) and Pasal (appellant) both fired with their 'Topaks' one shot each at him, that with the shot fired by Pasal (appellant) he got hit on the back on left side and with the shot fired by Masal (absconding accused) Mst.Noorul Wara got hit. Dawar Khan and Bilal were said to have been sitting in the bus and to have witnessed the occurrence. The old blood feud was mentioned as a motive for the crime. The learned trial Judge appears to have placed reliance on this piece of evidence while recording conviction on the appellant. In our view, however, F.I.R.-cum-dying declaration in this case was totally unreliable because it stood belied in material respects by the ocular, the circumstantial and the medical evidence furnished at the trial. According to Bilal's (P.W.16) statement Raj Wall (deceased) was not travelling in the bus but had only got into the bus when it was stopped and on seeing Masal and Pasal accused he wanted to get down from the bus when he was fired at. Bilal (P.W.16) further stated that he and Dawar Khan were not travelling in the bus, but were standing on the road side where the bus had stopped. The medical evidence shows that Raj Wail deceased had injury on right side front and not on the left side of the back. Further, the blood was found by the I.O. On the ground and not in the bus. For these material contradictions we would totally exclude from consideration the F.I.R.-cum-dying declaration made by Raj Wali deceased.
15. Coming to the only ocular evidence furnished by Bilal (P.W. 16), he had stated that in his presence Raj Wali deceased had boarded the bus and on seeing Masal (absconding accused) and Pasal (appellant) already sitting in the bus he tried to get down from the bus when he was effectively fired at by the appellant. As to the injuries received by Mst.Noorul Wara, Bilal (P.W.16) stated that she was injured by the shot fired by Masal (absconding accused). In cross-examination he categorically stated that one shot each was fired by the appellant and the absconding accused, which would mean that only two shots were fired by the accused party. The F.I.R.-cum- dying declaration also mentioned the same fact. As to the injury received by Raj Wali deceased even the appellant admitted that out of the two shots fired by him with his rifle one had hit Raj Wali deceased. The spent bullet was also recovered from the dead body of Raj Wali deceased. To this extent, therefore, the statement of Bilal (P.W.16) stood corroborated not only by the medical evidence but also by the statement of the appellant recorded under section 342, Cr.P.C. And F.I.R.
No,268 lodged by him. That, however, was not the end of the matter. In the background of the admitted old blood feud between the parties and in view of the fact that the plea of self-defence was set up by the accused at the trial, such solitary statement of Bilal (P.W.16) could not be relied upon unless it was supported by other circumstantial evidence brought on record. The real question to be determined, therefore, was whether the other circumstantial evidence brought on record by the prosecution proved beyond any reasonable doubt that the appellant had committed culpable homicide amounting to murder, or it supported the defence version that Raj Wali was fired at by the appellant in exercise of the right of self-defence.
16. Soon after the first report was made at Police Station the Investigating Officer recovered from the bus two empties of 7 MM bore which were found by the Fire Arm Expert (report Exh.P.L.) to have been fired from the licensed rifle No,903 MK (Ex.P.9) owned by the appellant, which was produced before the I.O. By Zarin Shah, the brother of the appellant. The I.O. Had also recovered from the bus one pellet. The injuries received by Mst. Noorul Wara were by pellets. One pellet was also recovered from her body. The question arises with whose shot Mst. Noorul Wara was hit? The prosecution said that it was the shot fired by Masai (absconding accused) but the defence version was that she was hit by the shot fired by Raj Wali (deceased) who was then standing on the road side. The statement of Lady Doctor Chaman Ara (P.W.1) would show that the injury received by Mst. Noorul Wara was 'from downward to upward', which means that the missile had travelled from below to upward direction. According to the site plan Mst.Noorul Wara was sitting on the seat which was in front of the rear door meant for boarding the bus. That being so, the only probability could be that she was fired at by a person who was standing (or sitting) on a lower level on the ground. Further, as already mentioned, the prosecution version was that two shots in all were fired. Two empties of 7 MM bore were recovered from the bus, which shows that two shots were fired with 7 MM bore rifle.
The defence version was that the appellant had fired two shots with his 7 MM rifle. Now, if only two shots were fired during the incident, as alleged by the prosecution, then those shots could only be those which were fired by the appellant with his 7 MM rifle. Mst. Noorul Wara was, however, having on her body a shotgun injury, which means that at least three shots were fired; one with a shotgun.
The prosecution has, however, not claimed so. If such a shot had also been fired by the accused, then the prosecution could have easily said that three shots were fired. This shows that the prosecution made meaningful suppression of a fact which favoured the defence version. The recoveries made from the bus and the medical evidence furnished at the trial in respect of Mst.
Noorul Wara, therefore, did not support the ocular evidence furnished by Bilal (P.W.16). This circumstantial evidence rather supported the defence story. In such circumstances, it was not safe to rely on the solitary statement of Bilal (P.W.16) when in the background there was an old blood feud.
17. Placing the prosecution version and the defence version in juxtaposition, we are of the view that the probabilities were greater on the appellant's side, and when such was the position, the cardinal principle of dispensation of justice in criminal matters that the benefit of doubt would go to the accused stood attracted to the case. In any case, the defence was able to create doubt in the prosecution case, which could not, for that reason, end in conviction. The learned trial Judge was, therefore, not right in recording conviction on the appellant.
18. We would, therefore, while accepting this appeal, hereby set aside the conviction and sentence of the appellant recorded by the learned trial Judge. He shall be set at liberty forthwith if not required in any other case. The Murder Reference is answered in the negative and the Revision Petition also stands dismissed.