Muhammad Afzal Zullah, J.--Sher Muhammad alias Shera aged 16 years, but by appearance as noticed by the learned trial Court 21 years, has been convicted for the murder of Kartara, his co- villager, by the learned Additional Sessions Judge, Lahore, vide his judgment dated 9th of August 1969. He has been sentenced to death and a fine of Rs. 5,000 under section 544-A, Cr. P. C. The case is before us for the confirmation of the death sentence. The convict also, has filed an appeal. Both the matters are being disposed of together.
2. The prosecution case as disclosed in the statement of Narinjan (P. W. 8), a real brother of the deceased and the first in formant, are as follows:-- Kartara, a Christian of village Badhoke had borrowed Rs. 100 from the appellant. About four days before the occurrence which took place on the night between 30th September and 1st October 1968, Kundu (P. W. 7) told Narinjan that Shera appellant and Kartara deceased were about to die over the return of Rs.
100. This part of the prosecution case can be explained with reference to the F.
I. R. wherein it is stated that Kartara had taken the loan from the appellant in connection with the purchase of a buffalo. When after some days the deceased failed to return the money, the appellant made a demand in that behalf. In spite of that, Kartara being a poor man could not make the payment. Four days before the occurrence Slier Muhammad was irrigating his rice fields and the deceased was passing nearby, when the appellant again asked for the return of the money on which the deceased got provoked and both exchanged abuses. This incident was witnessed by Faiz Khan (not produced) and Kundu (P. W. 7). They intervened and thus a light was avoided but both i.e., the deceased and the appellant had at that time given lalkaras to each other. All this, it appears was told by Kundu P. W. to Narinjan P. W. with his own remark that these two persons would kill each other. The details of the motive as contained in the F. I. R. are not given in the statement of Narinjan. Kundu (P. W. 7) has suppored this part of the prosecution case.
On the night of occurrence Narinjan was sleeping in his courtyard. Kartara deceased was also sleeping on a cot in the same courtyard. At about 1 a.m. Narinjan got up on hearing the report of a gun shot. He saw Shera appellant with a double, barrel gun. He was standing near the cot of the deceased. The witness stepped towards the appellant and raised an alarm, that his brother had been murdered by Shera. On this the appellant threatened him that if he stepped forward, he would kill him. Shangara (P. W. 10) and Rehmat (P. VV. 11) who it is in evidence, were on night watch duty, came to the spot. Rehmat P. W. had a torch with him. He flashed it and in the light the appellant was seen and identified by all of them. The appellant then ran towards the Eastern side of the village. Narinjan told Rehmat and Shangara that Shera had murdered his brother. Soon thereafter when many persons collected, Boota, originally cited as a prosecution witness but examined at the trial as a D. W. was one of them. He accompanied Narinjan to Police Station Kahna which is at a distance of live miles from the place of occurrence. On the dictation of Narinjan, Muhammad Shali A.S.I. (P. W. 13) recorded the F. I. R. Exh. P. A. at 4-30 a.m. on the morning of 1st October 1968.
During the investigation at the spot, the injury statement and inquest report relatiug to the deceased Exh. P.G. and Exh. P. G./2 respectively were prepared. It is significant to note that the entire prosecution version is given in the summary of facts, in the inquest report, but the names of Shangara and Rehmat as eye-witnesses and that there was a torch at the place of occurrence has not been mentioned therein. Apart from the blood-stained earth, the Police Officer took into possession three wads P. 7/1-3 from the cot of the deceased vide memo. Exh. P. C. The quilt P. 5 was also taken into possession vide the same memo. We have examined the quilt. There is a perforation in it which appears to have been caused by a gun-shot. Ch. Fazal Ahmad S. I. (P. W. 14) arrested the appellant on 2nd of October 1968, from a garden of the village. He was carrying gun P.
8 with one empty cartridge P. 10 in one of its barrels. Some live cartridges were also recovered from the appellant. All these articles were sealed into a parcel vide memo. Exh. P. E. Gulsher | Muhammad Malik, Fire-arms Expert (P. W. 9) on comparison | found that the empty recovered from the barrel had been fired from the gun recovered from the appellant.
3. Dr. Nusrut Ullah (P. W. 1), performed the post-mortem examination on 2nd October 1968 at 2 p.m.
Following injuries were found on the deay body:-- "(I) Lacerated firearm wound 1V'x ]}'' on left forearm and wrist lower " at dorsal aspect. Edges of the wound were inverted and slightly charred (no tattooing of gun powder present). Skin, muscles, both bones of forearm were absent at dorsal aspect. At anterior aspect there was wound of exit 3" x 1)/ at lower part of forearm rind wrist. Muscles were lacerated at this side.
(2) Firearm wound of entry 1" left side chest in front 1' away from nipple at 8 o'clock position.
Direction of wound was horizontal. It had injured cartilages of 6t.h, 7th rib on left side, sternum (lower part) left pleura, left ventricle of heart, pericardium. Right lung lower lobe and pellets entered the chest wall on right side lateral aspect and were lying in the muscles of chest (5 in number, removed, settled and handed over to police).
(3) Four wounds of entry of pellets on right side chest medial aspect parallel to injury No. 2. They went subslaneously. and made their wound of exits at the lateral side of right chest,
(4) Lacerated wound 11" x V which joins injury No. 2 and one of the wound of injury No. 3 ."
Right side of the chest contained 1200 C. C. of blood and left side contained 500 C. C. All the organs in the abdomen were healthy. Stomach contained 3 ounces of semi-solid food in the process of digestion. Liver and kidneys were pale. Bladder contained 2 ounces of urine. Cause of death was cardio respiratory failure due to haemorrhage and shock caused by injuries Nos. 1 and 2 which were individually sufficient in ordinary course of nature to cause death. All the injuries were caused by firearm. Injuries Nos. 3 and 4 were simple in nature. The death was within a few minutes after the receipt of injuries, while the duration between the death and post-mortem was about 26 hours.
In his supplementary statement under cross-examination the doctor admitted that there were four perforations on the right side of the chest by four different pellets. However, the size of each wound under injury No. 3 was not mentioned by him. The distance between the assailant and the deceased, according to the doctor, was about 6 to 12 feet. The pellets in case of injury No. 3 had not caused any substantial damage, to any vital part of the body. The doctor agreed with the suggestion that at the distance of 12 feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings, in an area of about 5/8 inches but without causing blackening, scortching or tattooing. This all, however, according to the doctor depends "on the size of the gun and the distance of gun, charge of the gun." It was further admitted by him that in case of injury No, 2 all the pellets had entered the body in one volume and had damaged the vital parts like ribs, lung and part of heart.
4. At the trial the prosecution case was supported by the account of occurrence given by three witnesses, namely, Narinjan (P. W. 8), Shangara (P. W. 10) and Rehmat (P. W. 11). The motive was sought to be proved from the statement of Kandu (P. W. 7) and Narinjan (P. W. 8), Muhammad Din (P. W. 5), Qutab Din (P. W. 6) and Ch. Fazal Ahmad S. I. (P. W. 14) are the witnesses of recovery of the gun and the cartridges from the appellant.
When examined at the trial, the appellant raised the plea of denial in respect of all aspects of the prosecution case. He gave an explanation of his false implication as follows:-- "There. is party faction in the village. Qutab Din, Wazir Khan and his party are inimical towards the Mayos. My grandfather evicted Inder and Kundu Christian 2 months prior to the occurrence. My father Chahu Khan and my uncle Chahat Khan forcibly took possession of an evacuee plot from Narinjan P. W. and Shangara. Narinjan P. W. is still in occupation of a piece of land for which my father and uncle are trying to evict them. Naranjin and other Christians are backed by Qutab Din and his party men. Qutab Din and Narinjan firstly involved in this case my father, my uncle and my brothers and cousins, myself and Chahat Khan and others about 18 persons were detained by the S. I. on 1st October 1968. After 2 days, the others were let off and under the pressure of Qutab Din and party, I was falsely involved in this case."
The learned trial Judge was requested by the defence to examine Muhammad Boota a prosecution witness but given up as won over, as a Court witness. This request having been declined he was examined by the defence as a D. W. In examination-in-chief he tried to support the defence version but in cross-examination he diluted the effect of what he had stated in the examination-in chief. His entire^statement, as a result, appears to be a patch work of some admissions and denials both in favour and against the defence.
Learned counsel for the appellant contended that the injuries suffered by the deceased were the result of more than one gun shot while all the eye-witnesses have stated that the appellant had fired only one shot; therefore, for this reason, it should be held that they had not seen the occurrence. It is true that according to the doctor the edges of wound No. 1 were slightly charred and there is no charring on any of the other three injuries. It is also correct that according to the description of the injuries, they give an appearance as if, they were caused by different shots, but after careful analysis of the statement made by the doctor and after noticing the fact that there is only one perforation in the quilt, which admittedly was on the deceased at the time of occurrence, we have come to the conclusion that all the four injuries were the result of one shot. It appears that the left forearm and the wrist (seat of injury No. 1) was exposed towards the assailant. The shot fired caused a wound 14"x 1}' on the wrist and lower part of forearm. The edges of this wound are inverted and are slightly charred. At the anterior aspect there is a wound of exit 3"x 1V. The charge it appears, entered as a mass from the dorsal aspect and it made a wider exit on the anterior aspect. After having come out of the wrist, which, it appears, was at the time of impact placed on the left side of the chest of the deceased, the pellets went of in slanting direction causing two injuries i.e.. Nos. 2 and 3. Injury No. 4 which is a lacerated wound lY'xY', in fact, does not appear to be an independent injury. Tt is in continuation of injury No. 2 and joins injury No. 3. In other words, the slanting dispersal of pellets, after making an exit in the wrist, was such that it produced three linked and continuous injuries Nos. 2, 3 and 4. The above explanation is enough to show as to why there is charring on injury No. 1 only and why there is no charring on the remaining injuries. From the examination of the quilt and perforation therein together with the seats of injuries it appears to us as if the deceased, at the time that the shot was fired, was keeping his left hand on the left side of his chest. The quilt is perforated near about its edge. The hand could also be outside the quilt. This explains why there is no burning of the upper surface of the quilt. The shot having gone out of the wrist perforated the quilt and then, the dispersal of the pellets was such so as to produce peculiar wounds which the doctor found in injuries Nos. 2, 3 and 4. In view of the above discussion we find no force in the contention of the learned counsel that more than one shots were fired. [I] that the identification in a dark night from such a distance was impossible unless it is found that there was some kind of artificial light. Thus the existence or otherwise of a torch at the time of occurrence is of very important circumstance.
8. Learned counsel for the appellant has attacked the prosecution claim that Rehmat P. W. had u torch. The torch was not taken into possession by the police. It was of such pivotal importance in the case that if it had been produced it must have been taken into possession by the police. There was no reason to act otherwise. The witnesses are highly discrepant on the point whether it was produced before the police. According to Narinjan, Rehamat P. W. had produced it before the police while according to Rahmat himself, the torch was not produced at all before the police.
Shengara has supported Rehmat and he has stated that Rehmat had not produced the torch before the police. No other witness has stated that the torch was seen during the investigation.
In view of the above discrepancy it becomes doubtful whether any torch was brought to the notice of the police during the investigation. If it would have been only the failure on the part of the police not to take the torch in possession we would not have attached much importance to this aspect of the case.
9. There are some other important circumstances which have put us in serious doubt about the fact whether there was any torch light at the time of occurrence so that the witnesses may have identified the assailant.
Firstly, the statement of Rehmat P. W. before the committing Magistrate is conspicuous by absence of any mention of torch or its (lashing by this witness. His entire statement before the committing Magistrate indicates that the witnesses identified the assailant without the help of any light. He was duly confronted with that statement. The only answer given by him was that he did not remember if he stated before C. M. that he was carrying a torch or that he flashed it in the courtyard of Kartara deceased. After this statement, he was confronted with the statement before the C. M. whereupon he stated "1 did state before C. M. that I flashed the light in the courtyard of Kartara deceased". He was again confronted with the statement made by him before C. M. He was unable to give any explanation of this major contradiction. This circumstance is so important that it cannot be ignored.
Secondly Rehmat P. W. stated that many persons of the village had arrived at the spot along with him and further that before the arrival of Shangara and this P. W. many other persons had already collected at the spot. This is not the solitary statement on this point. Kandu (P. W. 7) stated that he was the first to arrive at the spot. On his alarm, Shangara and Rehmat P. Ws. came there. He further stated that due to the darkness he could not identify the persons who had collected at the spot. All this shows that Rehmat and Shangara were not the first to arrive at the spot. Other people including Kandu who is also a Christian, had collected before their arrival, it is also clear that when people collected, there was not enough light for identification. Had Rehmat any torch with him at that time, Kandu P. W. would not have stated that he could not identify these persons because of darkness. We are, therefore, of the view lhat above pieces of evidence make it very doubtful whether Rehmat and Shangara were the first to arrive at the spot and whether Rehmat had any torch with him so as to identify the culprit.
Thirdly, the inquest report which was prepared by the A.S.I. soon after his arrival at the spot gives all the details of the background of the case and the occurrence. But the fact that Rehmat and Shangara had seen and identified the assailant and that at that time Rehmat had a torch with him are not mentioned in this report. Admittedly, the report was prepared on the 1st of October, during the day time and the F.
1. R. is shown to have been lodged earlier in time at 4-30 a.in. The two witnesses, i.e., Shangara and Rehmat, and the fact that Rehmat had a torcli with him and identified the culprit in the torch light are mentioned in the F. I. R. If we accept that the F.
1. R. was recorded first in time, then there is no reason why the inquest report, which was drawn later in time, should not contain any reference to these two witnesses or to the torch. Learned counsel for the appellant in this behalf seriously contended that the F.l.R. was in fact recorded either on 2nd or 3rd October, lie has point ed out amongst others at least two facts which have put us in doubt about the genuineness of F.l.R. Narinjan and Kandu P. Ws. were not available with the police during the initial stages . of investigation because according to the doctor they were with the dead body. Though it is mentioned in the F.l.R. in column No. 6, that a copy of the report was immediately -seat to the Headquarters but we have seen the original which was sent to the D. S. P. Headquarters. It bears the date of receipt as 2-10-1968. P. W. 12 Bashir Ahmad who was working as a Moharrir on 2nd October 1968, was questioned about the transmission of the copy of the F.l.R. to the Headquarters. No doubt, he lias stated that special report was sent through Sardar Khan F. C. No. 1999 and that his return is mentioned in the daily diary on 1st October 1968 at 2-40 p.m. He also stated that the said F.C. did not sign the relevant entry in this behalf. If the F.l.R. had in fact been recorded before the time that inquest report was drawn, we fail to see any reason why the Sub-Inspector would not have correctly copied it in the inquest report. It appears to us that at the time the inquest report was drawn the police had not decided about the entire prosecution case and the witnesses, who were to support Narinjan for implicating the appellant, had also not been named, Similarly it had not by then been clear to the police whether a torch light, moon light or lantern light was to be noted in so far as the means of identification were concerned. As the inquest report was to be immediately drawn for purposes of sending the body to the mortuary, therefore, there is no mention of the torch or Shangara and Rehmat witnesses in that document. In cross- examination, of Ch. Muhammad Shaft, A.S.I. (P. W. 13) the above circumstance was duly brought to his notice. He did not oiler any explanation with regard to very important omission in the inquest report.
Fourthly it is admitted that Rehmat and Shangara P. Ws. were not examined by the police till the third day of the occurrence. One explanation could be that the Sub-Inspector was either reluctant to do so or that he was negligent or dishonest. But the other explanation could be that till the time that they were examined it had not been finally decided that they were going to be the two eye- witnesses. The omission of their names from the inquest report supports the last-mentioned supposition.
And lastly it is mentioned in the statement of Muhammad Din (P. W. 5) that his house is at a distance of about 200 karams from the spot and that on the night of occurrence he was awakened by the noise of It is an admitted position that apart from the appellant about half a dozen persons were made to join investigation as suspects and they were detained for about two days. This leads to an irresistible inference that till at least one day after the occurrence, the police was not certain as to who was the culprit. Had it been a fact that the appellant was named as the culprit in the very instance, there was no need for joining other persons particularly his relations, as suspects. The learned Additional Sessions Judge has accepted the factual position in this behalf to be correct but has surmised that the Asstt. Sub-Inspector wanted to help the appellant, therefore, he in order to create confusion joined other people as suspects. We with respect to the learned trial Judge, must say that theie is not sufficient material for coming to the conclusion that the Asstt. Sub- Inspector wanted to help the appellant at the initial stages of the investigation. Had it been so, he would not have joined very close relations of the appellant as the suspects. Other persons like the friends of the appellant and people of the younger age could be made to join the investigation as suspects. We are unable to agree with the learned trial Judge that the failure on the part of the Asstt. Sub-Inspector to do certain things was motivated only by a desire to help the appellant. On the contrary, we are of the view that the lapses which have been found on the part of the Investigating Officers are due to the fact that neither the complainant nor the police were certain at the initial stages of the investigation about the identity of the culprit.
Considering all the above circumstances we are of the view that the prosecution has not been able to prove beyond reasonable doubt that Shangara and Rehmat P. Ws. identified the appellant as the assailant in the light of torch vyhich was with Rehmat P. W.
10. The next question arises whether Narinjan P. W. saw the occurrence and whether he was able to identify the culprit. We do not agree with the learned counsel for the appellant that Narinjan was not present in his house when the shot was fired and that at that time he was irrigating his field.
Narinjan has not made any statement to that effect. On the contrary, he asserted that he was lying on a cot in the courtyard when the shot was fired at his brother. Unless strong evidence is available to discredit the witness on this point, we are not ready to accept the mere supposition that if Narinjan had gone for irrigating his iield, he could not be present at the time of occurrence which took place at about midnight. It was likely that he had returned to his house before midnight. He claims to have slept in his own courtyard which is a normal circumstance. Therefore, in absence of any clear contradiction on this point we accept the claim of Narinjan that he was either asleep or was lying on a cot in his courtyard, when the occurrence took place. Wc do not attach any importance to the fact that the police did not take into possession the cot on which the witness was lying at the time of occurrence. Strictly speaking that cot was not very relevant in so far as the investigation is concerned. The cot, however, is shown at point 'E' in the site plan Exit. P. F./l. Wc therefore, hold that Narinjan was present in his courtyard at the time when the occurrence took place. But the more important question in this behalf is whether Narinjan was able to identify the assailant!
We have already held that only one shot was iired. Undoubtedly, Narinjan would have got up after hearing the shot. It does not appear that the culprit attempted to lire another shot. Therefore, whosoever, he was, he must have retreated after tiring the shot which, he must have realised, had proved effective. The recovery of the wads from ihe cot and the charring of the edges of wound No. 1 show that the shot was fired from a close range. Thus the assailant who selected the night time for committing the crime, having accomplished his job, must have immediately retreated. The distance of Narinjan P. W, from the assailant, as was worked out by both the learned counsel, could not be less than 25 feet. Without the help of any light it was impossible for Narinjan to have identified the culprit at that lime. We have already held that the prosecution had failed to.prove that the torch light was available, therefore, none of the witnesses could have identified the culprit.
Titus it becomes clear that even Narinjan was unable to identify the culprit.
11. Though the point was not raised by the learned counsel for the Slate but wc ourselves considered it whether the culprit was identified by Narinjan from his voice. It is in the statement of Narinjan that when he got up and wanted to go towards his brother, the assailant shouted that if he (the witness) stepped forward he would be killed. Wc arc in doubt whether in the circumstances noted above, the assailant would have stood at the spot to utter these words. However, even if this part of the statement of Narinjan is accepted, in the peculiar circumstances of this case, we arc unable to hold that Narinjan was able to identify the culprit from his voice. In reaching this, conclusion wc have also noticed that Narinjan did not state in his statement at the trial that he was able to identify the culprit from his voice. Identification by voice has been held to be a weak type of evidence and not sufficient for giving an affirmative finding. See Bhahtu v Emperor (1) and Moa Aung K/lin v. Emperor (2). We therefore, consider it safe to exclude from consideration the fact thatl Narinjan might have identified the culprit from his voice. I In view of the above discussion we have conic to the conclusion that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. Therefore, giving him the benefit of doubt we accept his appeal, set aside the conviction and acquit him. The sentence of death is not confirmed. The fine if realised shall be refunded. .