AGHA ALI HYDER. J.-The appellant was convicted by the learned Additional Sessions Judge, Jacobabad for offences under sections 302 and 324, P. P. C., and also under section 13-D of the West Pakistan Arms Ordinance. For the offence under section 302, P. P. C. He was sentenced to transportation for life, and to pay a fine of Rs. 2,000.00 or in default to undergo further R. I. For one year. He was awarded a sentence of two years' R. I. For the offence under section 13-D of the West Pakistan Arms Ordinance. But there was no separate sentence under section 324, P. P. C. Aggrieved by the Judgment of conviction and sentence, he has come in appeal.
2. P. W. Muhib Ali, and Jogi since deceased were first cousins, and lived separately in village Gaman Khan Lobar, in the District of Jacobabad. P. W. Rawat belonged to the same village, while the appellant comes from village Hayat Khan Bozdar, in the District of Larkana some 18 miles away.
3. The prosecution story, as disclosed in the F. I. R. Is, that on 21-6-1966 at about the trephari time Jogi and his father Wassu were sitting in their house along with Muhib Ali and his father Chudio, when the appellant and Rawat, turned up. They requested Jogi, to accompany them to the village Miranpur, as they had some work there. Jogi agreed to accompany them along with Muhib Ali up to the bungalow of Jafarabad, from where the two of them, were to branch off in a different direction to attend to their own affairs.
4. A little latter, the aforesaid four persons started on their journey, on foot. After they had covered a distance of about four miles, the appellant, took out a pistol from the fold of his shalwar, and fired at Jogi. The latter collapsed on the ground, writhing in pain. Some of the pellets, had struck Rawat as well in the arm. It is alleged that Muhib Ali, tried to catch hold of the appellant, but the latter re- loaded the pistol, and aimed at him. Muhib Ali, sensing danger to his life also, kept away. The appellant is stated to have shouted that Jogi on an earlier occasion had abused him, and stopped him from coming to his village, and he had settled the account. 'thereafter the appellant ran away.
Jogi soon succumbed to his injuries. Rawat and Muhib Ali remained sitting by the side of the dead body, throughout the night. The next morning Muhib Ali repaired to his village, and broke the news of the tragedy to his relations. Wassu the father of Jogi accompanied by some other family members, proceeded to the wardat and after removing the dead body to the Otak of one Dhani Bux Chachar went to the Tajudero Police Station, where he lodged the F. I. R. At about 2-30 p. m. H.
C. Muhammad Bux after recording the report proceeded to the wardat and secured the blood- stained earth for which he prepared a Mashirnama. He was shown the dead body in the Otak of Dhani Bux Chachar and prepared an Inquest Report. The dead body was then sent through F. C.
Muhammad Hanif to the Jacobabad Civil Hospital, for the post-mortem examination and inquiries were made from Chudio and Muhib. Rawat was examined in his village on 23-6-1966. As he had some injuries, a mashirnama was prepared and he was referred to the hospital. S. H. O.
Abdur Rashid, examined Lihaq and Ghous Bux on 26-6-1966. The appellant is alleged to have been arrested on 2-7-1966 and produced a pistol and three cartridges from a cluster of bushes which came to be secured vide a mashirnama. The Charge Sheet against the appellant was submitted on 18-7-1966, in the Court of the learned Civil Judge and F. C. M., Jacobabad, culmi--nating. In the trial by the learned Additional Sessions Judge, Jacobabad.
5. The appellant in his statement at the Court of Inquiry as well as at the trial denied the various allegations made against him and alleged that he had been maliciously run down by P. W. Rawat.
6. As for the death of Jogi apart from the ocular testi--mony, there is the evidence of Dr. Abdul Ghani who held the autopsy finding the following injuries on the person of the deceased:
(1) Multiple lacerated type of penetrating wounds each 1/6" in diameter x chest cavity, deep scattered over an area of 9" x 7" on the left side of the chest.
(2) Twenty lacerated type of penetrating wounds each 1/6" in diameter x skin deep on the posterior side of the left upper arm scattered over an area of 7" x 3--".
7. The internal examination revealed the puncture of the left interior wall of the chest, the thoracic aorta and of the left lung at various places. 16 pellets were recovered from the dead body.
According to the Medical Officer the injuries which had been sustained from a fire-arm such as shot gun were ante-mortem in nature, and sufficient in the ordinary course of nature to cause instantaneous death.
8. The injuries on the person of Rawat according to the Medical Officer were as follows:-
(1) Ten lacerated type of penetrating wounds each 1/8' in diameter on the lower 1/3rd on the right upper, arm on the posterior aspect. The X-ray place revealed three radio opaque substances.
9. The injuries were simple in nature and appeared to have been caused by the discharge from some fire-arm such as shot-gun from a distance of more than 10 feet.
10. The evidence against the appellant in regard to the offence of murder, consists of the eye- witness account, as furnished by Rawat and Mohib Ali and corroborated by Wassu and Gous Bux.
There is also the evidence of motive.
11. Rawat has deposed that the appellant was on visiting terms with him. Jogi had told him that the appellant wanted to go to Miranpur to collect some money from one Sharbat. Accompanied by Muhib Ali, they had left their village. In the evening, when they reached Miranpur, there was no trace of Sharbat and they were on the way, back t-- their village. When they had reached near the diversion of Gulab village at about the sun set time, the appellant all of a sudden took out a pistol from the fold of his loin-cloth, fired at Jogi and ran away. He also had received some Injuries but Jogi died then and there. At the time of the incident, Muhib Ali was urinating. The latter chased the appellant but gave up, when the appellant raised his pistol at him. Both he and Mohib Ali spent the night by the side of the dead body. The next morning, Muhlb Ali went to the village. The police had arrived later and he was referred to the hospital. In the cross-examination he made out that he could not give the distance from which Jogi had been fired upon, as the appellant was walking behind them. He has categorically stated that the dead body of Jogi was lying at the wardat, till he was sent to the hospital, but that is at tangent with the version of the Head Constable. He was no-- where at the wardat and was examined by the police the next day in his village, and then sent to the Medical Officer. His version at the Court of Inquiry duly brought on the record was, that the appellant had told Jogi and Mohib All, that he had to collect the money from village Hajiji.
According to him the appellant had reached their village the evening, pre--ceding the murder and he had not mentioned going to Miranpur. He was also confronted with certain portions of his statement made to the Police but the Investigating Officer was not ques--tioned, about the same.
It is a trite proposition of law, that when a witness is confronted with a portion of his statement, made to the police, which he repudiates, the Police Officer recording his statement, should be questioned specifically with that portion of the statement. Since the prescribed procedure was not followed, the same have got to be dis--carded from consideration. This solecism is perceptible elsewhere also.
12. Muhib Ali has stated that the Incident had taken place, at a distance of 100 or 150 paces from Dhani Bux Chachar village, and they did not go to Sharbat, because Jogi came to be murdered on the way. He has also mentioned the appellant brandishing his pistol at him, but was completely reticent about any chase on his part. He also did not know, about the arrival of the appellant, or that he had stayed with Jogi. The appellant had also not told him, that he had any work at Miranpur. It was Jogi, who had to recover Rs. 10.00 from Sharbat. That is what Wassu, the father of the deceased Jogi has also to say. Wassu on the other hand testified that the appellant had come to their house, the evening before the incident, and had left after the mid-day meals accompanied by Jogi, Rawat and Muhib Ali. He also conceded that there was no rancour between the appellant and Jogi, and repudiated the version in the F. I. R., that Jogi had stopped the appellant from visiting their village.
13. It is made out from the statement of Muhammad Yousuf, the tapedar, that the house of one Muhammad Faqir, was situated at a distance of 600 ft., from the wardat. Even the village of Rawat and Muhib Ali, was only 4 miles away. It is therefore rather surprising. That at least Muhlb Ali, could not go in the night, and break the news of the tragedy to the family members. Instead he remained glued to the wardat for the whole night. Even when the family members are apprised of the happening. The report is deferred till about 2-30 p.m. The explanation for the delay as given by Wassu appears to be far from satisfactory.
14. Muhib Ali patently appears to be a false witness. Rawat however has injuries on his person, but he was not at the wardat, when the Head Constable reached there, and was examined the next day. If he was at the wardat, as he professes, there is no conceivable reason, as to why he should not have been ex--amined, and if he was not fit enough to make a statement, at least he should have been sent to the hospital for treatment, Wassu on the other band states that he (Rawat) had been detained by the police. The Head Constable has also stated that he had found the dead body, not at the wardat, but in the Otak of Dhani Bux Chachar. We have not been impressed by the expla--nation, that the corpse was removed only to be kept under some shade. There was also no blood, secured from the wardat. To cap it all, Dr. Faruqui, who held the autopsy, has stated. In .Categorical terms that the injuries on the persons of Jogi and Rawat, were not the results of the same shot, as there was a difference, in the dimension of the injuries. In the case of Rawat, the pellets were found to be of a smaller size. That was also true of the injury No. 2 on Jogi. The prosecution witnesses have on the other hand, spoken with one voice, that only one shot had been fired. The Medical Officer, was further of the opinion, that the deceased was fired upon, while he was facing the assailant, while accordingly to the witnesses, it was from behind. So the conflict in between these two versions is irreconcilable.
15. Rawat can scarcely be said to be a witness of truth, and it is any body's guess, as to how and where the things came to a pass Hss version of the happenings, when put into test, in the light of the medical evidence becomes absolutely insupport--able. There is nothing to show that there was any thing abscure, fishy, equivocal or biased in the evidence of Dr. Faruqui. The evidence of Rawat, not being consistent with the medical evidence, must therefore yield to it. The test as observed in Wilayat Khan v. The State (AIR1953SC122) is not "whether the evidence of witness is of such a character as to be inconsistent, with the medical evidence", but rather it is "whether it is consistent with medical evidence", and if not, whether the accused should not get the benefit. In this view of the matter we would be reluctant to put any reliance on the testimony of Rawat either.
The evidence of Wassu and Ghous Bux is only derivative in nature sand need not detain us.
16. The motive as given In the F. I. R., and taken up by Rawat, but repudiated by Wassu, the first informant at the trial, was a mere padding signifying nothing. If there was any disagreement between Jogi, and the appellant, and the latter had been forbidden to visit even the village, it is difficult to account for the two days of hospitality which the appellant enjoyed at Jogi's house. Even the alleged production of the pistol, by the appellant will not connect him with the crime, because no empty shell had been found. We are therefore of the opinion that the conviction of the appellant for the offences under sections 302 and 324, P. P. C. Cannot be sustained.
17. As for the production of the unlicensed pistol by the appellant, apart from some conflicts in the evidence of Amir Bux the mashir, and S. H. O. Abdur Rashid, it is noteworthy, that Amir Bux was the mashir of the wardat and Inquest Report, and was again pressed into service some 12 days later, in this connection. He appears to be a henchman of the Police. We therefore do not find it safe to put any reliance on his words.
18. In the result we would set aside the conviction and sentence and allow the appeal. Release warrants to be issued forthwith.
KHUDA BAKHSH MARRI, J.-I agree.