ABDUL QADEER CHAUDHRY, J.--The appellant has been convicted by the learned Additional Sessions Judge, Dadu under section 302, P.P.C. On the charge of murder, who sentenced him to death and to pay fine of Rs.10,000. In case of failure to pay the fine he was directed to undergo R.I.
For one year. The fine if realised was directed to be paid to the heirs of the deceased. The matter is also before us for confirmation of the death sentence.
2. The prosecution case in brief is that the complainant alongwith his deceased brother Rawat alias Rano, Nazir son of Taj Muhammad and Mithal son of Muhammad Bux went together to the hotel of Qamberani in Phulji Village for taking tea. At about 5.45 p.m. The appellant Nawaz Ali son of Moula Bux, who had gun in his hand, his brother Amiro, who had Lathi in his hand and Jam, who was also armed with Lathi came in the hotel. Ali Nawaz appellant fired with the gun at Rawat who sustained injury on his back and fell down. The persons present at the hotel enquired from the appellant and his brothers as to why they had murdered on which they all the three replied that they had revenged the murder of deceased Moula Bux. The report was recorded by A.S.I. Ghulam Dastagir P.W. 8 at Police Station Johi, who proceeded to the Wardat and prepared Inquest Report Exh. P. 3 and sent the dead body for autopsy. He examined P.Ws. Muhammad Mithal and Nazir Ahmed. On 6-11-1982 he recorded the statement of P.W. Niaz Qamberani. The accused could not be apprehended. On 4-1-1983 on receiving spy information regarding presence of the accused /appellant at Dadu, he proceeded towards Dadu. He apprehended the accused from his own house situated in Phulji village in presence of Mashirs, Naboo Zounr and Ghulam Qadir Chandio.
The accused produced the gun which was empty. It was secured in presence of the same Mashirs vide Mashirnama .Exh. P.
9. Having failed to procure attendance of other two accused he submitted challan against the present appellant on 17-1-1983.
3. The prosecution relied upon the ocular testimony of P.Ws. All Nawaz and Mithal, recovery of the licensed gun from the house of the appellant and the evidence of motive.
The learned trial Judge accepted the three pieces of evidence against the appellant and convicted and sentenced him as stated above. We will, therefore, first discuss the ocular testimony of two witnesses namely Ali Nawaz and Muhammad Mithal. P.W.1 Ali Nawaz has deposed that he, deceased Rawat, Nazir and Mithal had gone to the hotel of P.W. Niaz for taking tea. At about 6.00 p.m. While they were sitting there accused Nawaz armed with gun and Jam and Amiro armed with Dandas came inside the hotel. Accused Nawaz was ahead of them and the other two were following him. Accused Jam and Amir challenged them while accused Nawaz fired gun shot at his brother deceased Rawat which hit him on the back. His brother fell down and the accused ran away. He went to Police Post Phulji and lodged report. The motive hart been stated by this witness that Moula Bux father of accused Nawaz was murdered about 10 years back. That case had proceeded against his brothers Ghulam Hyder and Nabban and in that case his both the brothers were acquitted. They were not on talking terms with the accused persons after the murder and acquittal. The accused have committed the murder because they had disclosed at the time of incident that they were to take revenge of the murder of Moula Bux. He produced the F.I.R. Exh.1.
P.W. 7 Muhammad Mithal has corroborated P.W. 1 on material particulars. It is, therefore, to be seen how far these witnesses are consistent and what are the infirmities as pointed out by the defence and what would be the effect of the same?
On the other hand the motive as alleged by the P.Ws. In their depositions would show that there is enmity between the accused and the P.Ws. And, therefore, they are not independent witnesses.
When the P.Ws. Have themselves alleged enmity, which is a double-edged weapon then the statements of the two eye-witnesses must be considered with caution. It is not rule of evidence but rule of prudence that the inimical witnesses must not be implicitly relied upon unless corroborated by some strong corroborative evidence and in the instant case there is C no corroboration to the evidence of the two eye-witnesses. The trial Judge has also sought corroboration from the recovery of gun. The gun is a licensed one. No empty was secured from the Wardat and according to the report of the Ballistic Expert Exh. P/10, the examination of the case had revealed that the .12 bore shot gun SBBL No. 18421 is in working condition and the examination of the fouling in the barrel has revealed that it has been fired. The gun was received by the expert on 31-1-1983. The date of incident is 5-11-1982 and according to this report it can only be said that the gun was used but this simple fact does not mean that this gun had been used in the commission of the offence. It was a licensed gun and unless it is connected with the commission of the offence no adverse inference can be drawn against the appellant /accused. Thus, recovery of gun is not a piece of evidence which corroborates the ocular testimony of the two eye-witnesses.
The third eye-witness Nazir, stated to have seen the incident was not examined by the prosecution due to the fact that he was out of country.
P.W. 2 Niaz Hussain has stated that he was present at the time of incident and according to him after sunset P.Ws. Ali Nawaz, Nazir Ahmad, Muhammad Mithal and deceased Rawat had come to his hotel for taking tea. In the meanwhile he took tea to be served on some other shop. He heard gunshot report and returned back and found deceased Rawat lying dead on the ground. He has further deposed that he did not see any person with his own eyes, therefore, he could not say as to who caused injuries to the deceased. He has stated that besides the P.Ws. And deceased there were other 8/10 persons sitting in his hotel at the time of the incident and about 20/30 persons had collected at the place of incident after the occurrence. According to him the incident had occurred after sunset. He has further stated that people were saying that Jam had murdered the deceased.
Thus the only independent witness has not supported the prosecution.
According to the learned A.A.-G. The statement of this witness would show that the incident did occur at that time. The presence of the two P.Ws. Has been admitted by this witness. This fact has also been considered by the trial Judge as a piece of evidence against the appellant. The statement of this witness has to be taken as a whole and that part of the statement which suits the prosecution cannot be separated from his statement wherein he has alleged nothing against the appellant.
Another feature of the case is that other persons were present in the hotel but the Investigating Officer did not care to examine any one of them. P.W.1 has admitted that there were 8/10 persons sitting in the hotel. It is stated by the learned A.A.-G. That no independent witness would come forward to give statement against the accused. Be that as it may, the fact is that there were certain persons present and therefore, it was the duty of the Investigating Officer to have examined those witnesses. Non-examination of independent witnesses would show the negligence of the Investigating Agency and the recklessness with which the police has made the enquiry of a capital charge.
Here we may refer to the case of Janib and two others v. The State, reported in 1986 P Cr. L J 583 wherein it has been observed that "it is admitted by all the eye-witnesses that apart from Shahan and Badaruddin several other persons came from the Saw-Mill on cries. However, they are unable to name any of those persons. Even police have not made any effort to enquire from those persons about the occurrence and cite them as witnesses. Thus, even though independent witnesses were available at the Wardat, yet they were not produced in evidence. It is not enough to do away with their evidence merely on the ground that such witnesses are generally not willing to come forward and support the prosecution case. The police should under no circumstances show their slackening in procuring the evidence of independent witnesses if they were present at the time of occurrence.
It has been further observed that in case after they are cited as witnesses and are produced in Court for evidence, they do not support the prosecution on account of any pressure, they can be cross-examined in order to convince the Court about the reason for their resilement from their initial statements."
This case is also relevant on the point of motive. At page 593 it has been observed that motive is another name of enmity. If it is advanced by the prosecution as reason for the accused to commit the murder of the deceased, it can equally be used by the accused side as a reason for complainant party for their false implication.
4. The first information report Exh. P-1 shows that it was lodged at about 9-30 p.m. It is an admitted fact that Phulji P.P. Is few paces away from the place of Wardat. According to the complainant he left for Phulji Police Post but police was not available there. Then he proceeded towards the roadside and met Jamadar Allah Rakhio. He and Allah Rakhio went to Johi and they informed the S.H.O. About the incident at about 12.00 in the night. The S.H.O. Deputed A.S.I. Ghulam Dastagir for the purpose of investigation and he proceeded from Johi to the Wardat in the jeep and reached back Phulji village at about 6.00 a.m. And Ghulam Dastagir recorded the F.I.R at the place of incident. If this statement be accepted it means that the first information report was recorded after starting the investigation at about 6.00 a.m. i.e. After about twelve hours of the actual occurrence.
This witness in the same breath again stated that the F.I.R. Was recorded about 12.00 in the night and they have reached the place of incident at about 12.00 in the night. Thus. The witness has given different versions about the recording of F.I.R. And this is the quality of evidence which the prosecution has produced at the trial.
5. The learned counsel for the appellant has submitted that according to P.W. Niaz the people were saying that Jam has committed the murder. Therefore, this fact is a relevant fact under section 19 of the Qanun-e-Shahadat, 1984. According to this provision facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and place. The learned counsel has referred to subsection (a) of section 19 of the Qanun-e-Shahadat, 1984. This fact is not material in the present case as the names of the accused have been mentioned in the first information report.
However the statement of P.W. Niaz has to be considered as a whole and he has given an obliging statement in favour of the appellant.
6. Then the medical evidence contradicts the ocular evidence. According to the site plan the fire had been made from a distance of 12 feet, whereas the complainant has stated that the fire had been made from a distance of 9 feet.
Dr. Muhammad Siddik P.W. 4 had performed the post-mortem on the dead body of the deceased and found the following injuries: (1)A lacerated oval-shaped gunshot wound 2 c.m. In diameter on the back of the right side of lower chest with blackening at the around its margins, being the wound of entrance.
(2)A lacerated gunshot wound 3 c.m. x 1.5 c.m. On the anterior side of right lower chest communicating with injury No.1 as such wound of its exit.
(3)A lacerated gunshot wound 1.5 c.m. x 5 c.m. On the right side of chest anteriorly. It was also communicating with injury No. 1, hence wound of exit of injury No. 1.
(4)A lacerated gunshot wound 2 c.m. x 5 c.m. On the right side of chest anteriorly, communicating with injury No.1, hence wound of exit.
(5)A lacerated gunshot wound l c.m. x 5 c.m. On the right side of chest anteriorly communicating with injury No.1, hence wound of exit of injury No.1.
From the external as well as internal examination of the dead body the doctor was of the opinion that all the injuries were ante-mortem and appeared to have been caused by discharge of gunshot.
Learned counsel for the appellant has referred to the Identification of Firearms and Forensic Ballistics by Major Sir Gerald Burrard. The learned author at page 73 has expressed as under: "The wads can also provide useful confirmatory evidence of the range, and for this reason the pathologist who makes the post-mortem cannot exercise too much care in trying to find every particle of wadding which was blown into the wound. On this account the pathologist should be familiar with the number and type of wads loaded in a shotgun cartridge, and this information should be checked if possible by unloading an unfired "crime" cartridge if any are available." Thus, according to the learned author, "the over-shot card wad when one is used, separates from the shot charge and rest of the wadding first of all, and seems invariably to have dropped clear of the shot charge before a range of 6 feet is reached. This being so, the presence of an over shot card wad in a wound provides every strong presumptive evidence that the shot was fired from less than 6 feet; while the absence of the over-shot card wad suggests that the shot was fired from more than 6 feet provided the pathologist can be absolutely certain that he did not overlook the wad in the wound. This is a contingency which must be realised." Presence of wad in the wound would show that the fire had been made from close range.
7. Taking all the material in consideration even if we accept the inherent defect pointed out in the prosecution case, the fate of the appellant rests on the evidence of two interested witnesses. The other pieces of evidence have to be excluded. The two witnesses are inimical as is clear from the evidence and therefore, the evidence of such I witnesses cannot be relied upon unless corroborated by some other reliable evidence which is none in the present case.
1973 SCMR 312 and PLD 1973 SC 321, it has been observed that, whenever there is a contradiction between the medical evidence and the ocular evidence on material points, the medical evidence should be preferred.
8. The appellant is therefore, entitled to the benefit of doubt as of right. The appeal is accepted and the conviction and sentences recorded against the appellant are set aside. He shall be released forthwith if not required in any other case. The sentence of death is not confirmed and the reference is rejected. The appeal was accepted by the short order and the above are the reasons in support of the same.