' The appellants have filed this appeal against their conviction and sentences recorded by the learned III Additional Sessions Judge, Sukkur who by means of his order, dated 30-11-1981 convicted the appellants under section 302/34, P.P.C: and sentenced them to life imprisonment and to pay fine of Rs.5,000 each in default to undergo R.I. For two years. It was ordered that if the fine is realised it be paid to the heirs of both the deceased in 'equal shares.
2. The facts in brief are that deceased Bagh and Punhoon both sons of Bahadur were nephews of complainant Mitho whereas accused Allah Warayo and Rahim Bux are both sons of Attal who is cousin of complainant Mitho. The parties reside in houses having common courtyard. Accused Allah Warayo suspected deceased Bagh to be on illicit terms with his wife Mst. Maryam as such three days before the incident he migrated to the house of his father in law which is at a distance of two furlongs. On 24-6-1977 at about morning prayer time complainant alongwith his brother Wazir was sitting in his house when accused Allah Warayo armed with gun and Rahim Bux with hatchet came there. Allah Warayo challenged deceased Bagh and fired his gun at him which resulted in his instantaneous death. Accused Allah Warayo made another fire at Punhoon who also received the injuries and died at spot. Accused Rahim Bux threatened the complainant party not to come closer to them else they would be murdered. Complainant Mitho raised cries which attracted P.Ws. Muhammad and other villagers who also saw the accused. Accused then went away towards East. The complainant 'party did not follow them due to fear. The complainant went to the police station Mirpur Mathelo and lodged the report which was recorded by P.W.7 Hamidullah Bugti who proceeded to the Wardat, secured blood-stained earth and empty cartridges and sealed the same in presence of the Mashirs Gullan and Dhani Bux vide Mashirnama Exh.18. He has also prepared the Inquest Report of dead bodies in presence of the same Mashirs. On 25-6-1977 accused Allah Warrayo was arrested in presence of same Mashirs vide Mashirnama Exh.20 and he produced the gun voluntarily to the Police which was secured in presence of the same Mashirs vide Mashirnama Exh.21. A separate case under section 13 (E) of the Arms Ordinance was also registered against him.
On 28-6-1977 accused Rahim Bux was arrested in presence of same Mashirs vide Mashirnama Exh.22. He produced hatchet before the Police. The articles were sent to the expert for examination and report. After usual investigation challan was submitted against the accused persons.
3. At the trial the prosecution examined P.W.1 Mitho, P.W.2 Dr. Sodhamo Mal who held the autopsy over the dead bodies, P.W.3 Wazir, P.W.4 Muhammad (eye- witnesses), P.W.5 Mashir Gullan and P.W.6 Dhani Bux Mashir and P.W.7 Investigating Officer. The accused denied the prosecution allegations and claimed their implication by the witnesses due to dispute and enmity over land.
4. P.W.2 Dr. Sodhamomal performed the autopsy on the dead bodies of the deceased and found the following injuries on their person.
Bagh son of Bahadur;
(1) One lacerated punctured wound 11" x 1}" x on right lower part of back 3/4 lateral to middle line, wound going upward and medially abdomen cavity deep, burning and charring present.
(2) Six lacerated punctured wounds (out let) on the right lower chest and right hypochonodrium of abdomen, each measuring 1/3" x 1/3" upper three chest cavity deep and lower three going abdominal cavity, blood coming from all the wounds with bubbling from upper three wounds, edges were found everted. Accordin/ to the doctor the injuries were caused by discharge from fire arm and death was resulted due to shock and profused haemorrhage. Injury No.1 individually and injuries No.1 and 2 collectively were sufficient to cause death in the ordinary course of life.
Punhoon son of Bahadur:
(1) Six lacerated punctured wound each i" x 1/3" going upward and medially, on' the left iliac creast and left upper buttack, fracturing the bone going abdomen cavity deep, edges inverted.
(2) Two lacerated punctured wounds each i" x 1/3" muscle deep on the left lower buttack edges, inverted burning and charring was present.
(3) One lacerated wound edges, black and burnt 3" x 4" x skin deep on the lateral area of lower abdomen.
(4) One lacerated punctured wound 1/3" x 1/3" x muscle deep on the left side of lower abdomen 5" lateral to umblicus edges were found everted. The doctor was of the opinion that the injuries were caused by discharge from fire-arm and the death has resulted due to shock and profused haemorrhage. Injury No.1 individually and injuries 1, 2 and 4 were collectively sufficient to cause death in ordinary course of life. #TBS Learned counsel has referred to Medical Jurisprudence and #TBE
5. In order to bring home. The charge against the appellants the prosecution has relied- ,upon the ocular testimony furnished by P W.1 Mitho 'and P.V.3 Wazir corroborated. By P.'W.4 Muhammad .,The additional pieces of. Evidence against the appellants.
Wa's the' recovery of crime weapons and the motive but the learned trial Judge disbelieved both the pieces of evidence. Recovery of gun was not relied upon so also the motive. However, the ocular testimony was believed and the conviction was recorded.
6. P.W. 1 Mitho the complainant had corroborated the contents of the first information report. He gave the same statement at the trial. P.W.2 Wazir the other eye- witness and inmate of the house has also corroborated the statement of P.W. Mitho. P.W.
Muhammad who was stated to have attracted to the Wardat and saw the accused running away from the Wardat, has stated that accused Allah Warayo was armed with gun whereas accused Rahim Bux was armed with hatchets.
' Learned counsel for the appellants has submitted that the ocular testimony of the two eye- witnesses is contradicted by the medical evidence and in view of such contradictions implicit relig,nce cannot be placed on the statements of the two eye-witnesses who are also interested.
Learned counsel has assailed the finding of the trial Court on the ground that the statement of the doctor about the distance from which the accused had fired cannot be accepted as the nature of injuries show that the fire-arm used against deceased Bagh was from close range so also the injuries No.1 and 2 were result of a fire from close range and the injury No.1 was a result of discharge from the fire-arm from a long distance. According to P.W. Mitho accused Allah Warayo was at a distance of 2-3 paces from deceased Bagh. Deceased Punhoon was at a distance of about 8-9 feet from deceased Bagh and according to doctor injury No.1 on the person of deceased Bagh was caused by gunfire from a distance of within four feet and the injuries on the person of deceased Punhoon were caused by the discharge of fire-arm from a distance of 10-12 feet.
I first refer to the injuries on the person of deceased Bagh. The nature of injury show that deceased had received the injury on the back. Injury No.2 is the exit wound. Thus deceased Bagh had received the injury while his back was towards the assailant. This fact itself clearly shows that the ocular testimony of the eye-witnesses is contradicted by this fact because according to the witnesses accused Allah Warayo challenged deceased Bagh that he will not be spared and then he fired straightaway at him, who fell down on the cot. It is not the case of the prosecution that the deceased's back was towards the assailants when the accused had fired at him. Injury No.1 also shows presence of burning and charring. Now I take up the case of the other deceased. Injury No.1 does not show presence of any burning or charring. Injury Not shows burning and charring. Injury No.3 shows that the skin was lack and burnt. In this case injury No.4 was exit wound. Injuries No.2 and 3 have thus been caused from the close range and in such circumstances it is clear that two fires had been made at the deceased. Injuries 2 and 3 were the result of discharge from the fire- arm with a close range and injury No.1 was a result of discharge from fire-arm from some distance.
Toxicology by Modi,. Thirteenth Edition page 224 and for the sake -of eonvenience the relevant portion is' reproduced below: "Distance of the Fire-arm.--If a fire-arm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder. The adjacent hair is signed, and the clothes covering the part are burnt from the flame of the gas. If the powder is smokeless there will be no blackening of the skin, but there may be a greyish or white deposit on the skin round the wound. No blackening or scorching is found, if the fire-arm is discharged from a distance of more than four feet. Moreover, these signs may be absent even when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame, smoke and particles of gunpowder will all follow the track of the bullet in the body."
' The author has further stated at page 225 that the effects produced by small short fired from a shot gun vary according to the distance of the weapon from the body, and chocking device. A charge of small shot, fired very close to, or within a few inches of, the body enters in one mass like a single bullet making a large irregular wound with scorched and contused edges, and is followed by the gases of the discharge which greatly lacerate and rupture the deeper tissues.
' Learned counsel has relied upon various authorities in support of his submissions. The following passage of the case reported in AIR 1956 SC 526 is relevant and is reproduced below:- "For instance, it is stated in Taylor's Principles and Practice of Medical Jurisprudence, Volume I, 10th Edition, at page 441, under the heading 'Burning of the Wound, ' It is impossible to state rules as to the precise distance from which it is possible to produce marks of burning, for this depends on the quantity and nature of the powder, the method of charging, and the nature of the weapon. It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shot gun, or at more than half a yard with a revolver."
' In Ajun 'Shah v. The State PLD 1967 SC 185 it has been observed that there was no burning either on the cloth or in the entrance of the wounds. On the other hand, charring of the wounds show that the muzzle of the gun was at some distance when the show had been fired.
' In PLD 1959 Kar. 137 the following observations are material:- "This shows that the gun was fired at the deceased not from distance of 100 or 120 feet but from a distance of not more that four yards. These injuries could easily be caused even from distance of four yards. Mr. Junejo, the learned counsel for the State, has invited our attention to the observation of Dr. Sydney Smith in Volume I of Taylor's Principles and Practice of Medical Jurisprudence at page
441. According to this observation the shot begins to disperse in any ordinary cylindrical barrel a about three yards, at which distance the bulk of the shot enter in one mass and leaves a hole with a few isolated shots aroun it. The dispersion gradually increases, and at about five yards an open pattern about ten inches in diameter is found. At ten yards the diameter of spread is about twenty inches, at twenty yards about thirty inches and so on. With fully choked barrels the dispersion is about half the above. The learned commentator has further stated; It is unusual however, to get marks of burning beyond a yard or a yard and a half with a shot gun, or at more than a yard with a revolver."
Modi also in his book on Medical Jurisprudence and Toxicology at page 218 has observed:- "If a fire-arm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder."
A little further he observed:- "No blackening or charring is found, if the fire-arm is discharged. From a distance of more than four feet."
In Mir Muhammad and others v. The State 1972 P Cr. L J 1108 it has been observed that the nature of the injury coupled with the evidence of the Medical Officer that the injury must have been caused from a distance of few inches, falsified the eye-witnesses and made it unsafe to rely on their testimony. In this respect the following observation is also material:- "In the absence of the gun, the range of the shot should be estimated according to the formula given by Major Sir Gerald Burrard (The identification of Fire-Arms and Forensic Ballistics--1956 Ed-p.
73) according to whom, if the diameter of the wound is an inch, or less, then the distance of the shot would be 18 inches or under and that at 3 feet, the hole is nearly 11" in diameter, and, at 6 feet, the hole would be nearly twice as big in diameter as that from a full choke. The measurement of the wound of entry according to this estimate would show that the fatal shot could not have been fired from the roof. Further, as a shot gun was used then according to Burrard, the pellets of a charge of shot do not fly through the air as a single cohesive projectile, but being to disperse outwards very soon after their exit from the muzzle of the gun. This dispersion increases wit% the range and consequently the greater the dispersion of the shot marks on any target and greater must have been the range from which the shot was fired against the target. In Sweet and Maxwell's publication, 'Practical Police Surgeon' (1969) Ed., page 121), it is stated that if the missile is a charge of shot then it forms at first a single mass and then breaks up into individual pellets, and therefore, at close or contact range, a single wound results, whereas at longer range individual pellet holes will show in increasing number and a widening pattern as the range lengthens. Similarly Lyon (Medical Jurisprudence for India 1953 Ed., page 276) states that if the muzzle of the gun is held to the surface of the body, or within a few inches of it, the whole charge, of the shot enters as one mass followed by Wads. Taylor (Principles and Practice of Medical Jurisprudence 11th Ed., page 384) states that up to about a yard the whole of the charge enters in a mass, producing a round hole about the size of the bore of the weapon, with ragged edges and, for the first few inches surrounded by a zone of blackening and burning and that the diameter of dispersion in inches will be found to be about one and a half times the distance in yards."
In PLD 1968 Lah. 437 the opinion of the Medical Officer was discarded as the same was not in accord with opinion expressed in a treatise on fire-arms and ballistics. In 1978 P Cr.L J 690, though the presence of the eye-witnesses at the spot was established but conviction was not based on their testimony and the medical evidence was preferred over the ocular testimony. In the present case the ocular testimony is belied by the medical evidence and the medical evidence cannot be accepted in view of the opinion given by Moth and other experts in their books. The ocular testimony has to be discarded as it is the consistent statements of the two witnesses that both the deceased had received one shot each but the injuries on the person of deceased Punhoon show that he received two injuries.
' The inquest report shows that there was one white Banyan an one Ajrak on the person of deceased Bagh. Deceased Punhoon was having lion cloth on his body at the time of inspection by the I.O. Bunyan of the deceased does not show any corresponding mark. Even otherwise these articles were not sent to the Chemical Examiner. If the prosecution story is accepted that the deceased Bagh had received injuries as stated by them then there must have been some marks o the Banyan of the deceased. This fact also casts doubt on the prosecution version as stated by the eye-witnesses. In 'these circumstances the conviction recorded against the appellants cannot be sustained. The appeal is accepted and the conviction and sentences recorded against the appellants are set aside. The appellants are on bail. Their bail bonds are discharged. The appeal was accepted by the short order, dated 6-8-1986. The above are them reasons for the same.