This is an appeal by Gehna son of Shahzada, Caste Dogar, resident of Bhunaki Uttar who has been convicted under section 302, P. P. C. And sentenced to transportation for life by the learned Additional Sessions Judge, Lahore (camp at Kasur) by means of his judgment and order, dated 6th April 1970, for the murder of his real brother Muhammad Din.
2. The facts of the present case are that in consolidation proceedings of the village, one kanal of land was jointly given to the five brothers, namely, Fattu, Nura, Inayat, the present appellant Gehna and Muhammad Din deceased. About three months before the occurrence, the five brothers arrived at a family settlement as a result of which the aforesaid plot of land was partitioned and a portion thereof fell to the lot of Muhammad Din deceased. On 22-6-1968 at about 9 a. m., Shall Muhammad and Jan Muhammad, sons of the deceased (that is, nephews of the appellant) started constructing a wall to separate their share of the aforementioned land. This was taken exception to by the appellant, whereupon a quarrel ensued between the uncle and the nephews.
Muhammad Din brother of the appellant along with his wife Mst. Rajan came on the spot and tried to intervene but the situation did not come under control. The appellant left that place and' started going towards his house saying that he will set the things right. He was followed by Muhammad Din who in pursuit had reached near the outer door of the house of the appellant. The appellant who in the meantime had- brought out his licensed gun Exh. P/2 from his house fired at Muhammad Din who fell down on the ground: The accused ran away. The injured person was brought to Pattoki Hospital where he died shortly thereafter. The occurrence was reported by Shall Muhammad son of the deceased (P. W. 8) at Police Station Sarai Mughal which was at a distance of seven miles from the spot. The F: I. R. (Exh. P. A.) was recorded by Nazir Ahmad S.I. (P.W. 12). The Sub-inspector reached Pattoki Civil Hospital the same day and found that the deceased had already expired. He prepared his injury statement and inquest report and sent the dead body for post-mortem. He then reached the spot; collected the blood-stained earth and a wad of the cartridge (Exh. P. 1) which was lying at that place. The accused was arrested on 23-6-1968 and while in custody he produced a licensed gun (8xh. P. 2) from the residential Kotha alott with them car the licence which were taken into possession vide memo. Exh. P. G. The gun was sent to the Forensic Expert for finding out as to when it was last fired but the report of the Arms Expert was that this information could not be given with certainty though they opined that the gun was in a working condition. The wad of the cartridge, however was not sent to the Arms Expert to find out as to whether it had been fired from the same gun hereinbefore mentioned or not. After conducting the necessary investigation a challan was put in against the accused and after trial he was convicted and sentenced as herein before mentioned. The autopsy on the body of the deceased was performed by Dr. Muhammad Akram Khan (P. W. 1) on 22-6-1968 at 8 p. m., who found the following injuries on the person of the deceased arid deposed as follows: "(I) 'An area of inlet multiple gunshot wound 12 in number, 5' x 4--, on front of left shoulder and left upper chest. All bones and chest cavity deep. Left humrus bone was fractured at its neck underneath. One cardboard and two pellets were removed from chest and shoulder muscles. Left lung and pleura were ruptured. Fourth and fifth ribs fractured and whole of the left chest cavity was full of blood. One pellet was removed from left lung.
(2) An abrasion, 1' x --, on lower left ear,
(3) An abrasion, 1' x 1/4', on left cheek.
(4) An abrasion -- x 1/8' on left lower lip.
(5) Three multiple abrasions in an area of 2" x 1' on the back of left palm and thumb.
Note.--Three pellets and one circular cartilage cardboard were sealed in a separate bottle.
Left chest wall was ruptured. Fourth and fifth left ribs were fractured and others were healthy. Left pleura and lungs were ruptured. Others were healthy. Blood vessels were ruptured in left chest. All other organs were healthy and stomach wag empty. Bladder was containing one oz. Of urine.
The death in this case, in my opinion, was due to shock and haemorrhage on account of multiple gunshot wounds causing bone fractures. Rupture of left lung and pleura under injury No. 1 which was grievous and sufficient to cause his death in any ordinary course. Other injuries were simple.
All injuries were ante-mortem. The duration which elapsed between the injuries and death was 2 to 4 hours and between death and post-mortem was within 12 hours. I handed over the body of the deceased, four carbon copies of post-mortem examination report, one injury report, police papers, one dhoti and one sealed bottle to the police. Exh. P. H. Is the correct carbon copy of my post- mortem examination report which is in my hand and is signed by me. Exh. P. H/1 is the sketch of injuries of the deceased which is also in my hand and is signed by me:"
From the aforementioned evidence it is established on record that the deceased died as a result of an assault on him.
3. Coming to the motive, it was admitted by the appellant JU his statement is Court that he along with his brothers bad been given jointly one km of land near the Village Abadi a consolidation proceedings. The rest of the prosecution version was denied by him. Shafi Muhammad (P. W. 8) has depot that altercation on the spot did take place. In that state of affairs, it can be assumed that some dispute did take place on the day of occurrence between the appellant and his nephews.
4. So far as the ocular evidence is concerned, I must say that on that point the prosecution has not succeeded in making out a case against the appellant with any certainty beyond any reasonable doubt. The eye-witnesses in the case are Shafi Muhammad (P. W. 8); Jan Muhammad (P. W. 9) sons of the deceased and Barkat Ali (P. W. 10) who is a collateral of the deceased. In the F. I. R., there were mentioned two other eye-witnesses, namely, Zaida Dogar and Mst. Rajan wife of the deceased. Both these, however, were not produced at the trial. So far as P. Ws. 8, 9 and 10 are concerned, all of them turned hostile and did not support the prosecution case in the Court of Session. All of them were cross-examined by the prosecution and though the learned Additional Sessions Judge drew deductions from their statements in the committing Court and held the crime proved against the appellant but in my opinion in the circumstances of the case, it is not safe to rely on them in any manner. No doubt in the committing Court they did make statements against the appellant but it cannot be said which of these statements are correct, especially, when there is no other independent corroboration. The character of the witnesses from the very fact of having resiled from certain earlier statements has become open to doubt and it is not fair and proper to rely on them without any independent support which in the instant case, is however, not forthcoming. Exh. P. 2 is a licensed gun of the appellant and though it was taken possession of by the Police on 23-6-1958 but at the time of recovery in the Memo. Exh. P. G. The Investigating Officer did not note down whether there was any s l of discharged powder or fresh black powder marks about it. Though the gun was recovered on 23-6-1968 it appears that it was not sent to the Arms Expert for a pretty long time. In these circumstances, it cannot be said with certainty that the appellant used his gun (Exh. P. 2) in this affair in this connection, it is worthwhile to reproduce a passage from page 191 of "Forensic Medicine" by Sir Sydney Smith and Frederick Smith Fiddes (1955) (10th Edition) which reads as follows:- Examination of the weapon:--If a weapon is found it should first be sketched or photographed .In its position and an examination for finger prints then be carried out by the competent officers. The muzzle should be plugged and the weapon despatched at once for examination in order to ascertain whether it has been recently fired. The investigator will note whether there is any smell of freshly discharged powder of fresh black powder marks about it. If it is a revolver he will note the number of rounds fired and the number left unfired; if his an automatic pistol the magazine will be removed and examined and the breach opened to ascertain if a round is present there. If it is a shot sun he should observe whether both barrels have been discharged, for if one is still charged its con-- tents will be of the greatest value for comparison with projectiles, wads, etc., found as described above. He will note whether the cap in the case of muzzle-loading guns is present, and whether it is clean and fresh oolong or whether it is covered with green verdigris.
He will satisfy himself that the w a on is in working order and has been fired, for a crime may be committed with one weapon and another left at the scene of the crime. .
It may be necessary to' ascertain what kind of powder was used: This information may be obtained from the examination of the barrel and of the clothes. An examination with a lens should be made before the clothes have been much handled or disturbed, for there are often fragments or whole grains of powder attached to the clothes or wound which indicate the type and sometimes the brand of powder which was used. Some powders have characteristic appearances which may enable the observer to recognise their on microscopic examination. Details of such examination may be found in "Recent Advances in Forensic Medicine by Smith and Glaister.
The barrel is than washed out with repeated quantities of dis-tilled water and aliquot portions of the washing fluid subjected to qualitative and quantitative chemical tests.
With stains front black powder the reaction is alkaline, there is sulphide present for the first few hours, and this gradually oxidizes to sulphate, which is later found to quantity together with traces of tbiosulphates and thiocyanates. Nitrates if present are in traces only. Carbonates and bicarbonates are present in varying proportions, With nitro powders the reaction is neutral; sulphates if present are in traces only, and nitrates are usually present in quantity. Sulphide, and sulphuretted hydrogen are not found.
A certain amount of information may be obtained with reference to the time when the weapon was discharged if black powder was used. H2S or Sulphides may be found for five or six hours; thereafter there is a gradually increasing amount of sulphate. The increase of sulphate, thiosulphate and thiocyanate is not sufficiently regular to enable any precise opinion to given as to the time of discharge.
The presence of carbonates and bicarbonates and their relative amount gives a certain amount of information about the time of firing; for example, in twenty-four hours there is about twice as much carbonate as bicarbonate;, this gradually changes, and in about seven days the bicarbonate greatly exceeds the carbonate.
Ferrous salts are present- early, but ferric salts are not found until the lapse of about a month. A great deal depends, of course, on the condition of the un when fired, and this is never known.
The stains from nitro powders o not alter with brae."
5. So far as the cartridges recovered by the Police from the accused along with the gun and the wad recovered at the spot are concerned, it is again to point out that they also were not put t any Forensic test for the purpose of identifying as to whether nod recovered on the spot was of the same type as the cartridges recovered from the accused or that the wad was the same which could be said to have been used in the gun recovered. In the absence of such an evidence on the record, in my opinion, it will not be safe to fix the accused with the liability of the crime under discussion, especially, when all the eye-witnesses have failed to support the prosecution case at the time of trial in the Court of Session. No doubt, surmises and conjecture may be there that it might be the appellant who in the circum--stances would have fired at his brother but then it is well known that criminal liability cannot be based on surmises and conjectures. In the very nature of things certain other persons were present on the spot but none of them has been produced by the prosecution. The learned Addl Sessions Judge was of the view that since P. W. 8 in the Sessions Court had supported the prosecution case up to the stage of a quarrel having developed between the parties at the spot, therefore, from it the rest o the occurrence could safely be inferred and the liability fixed on the appellant. The development of a dispute on the spot, in my opinion cannot be a sure guide for the purpose of determin--ing as to who in the heat of the passion, that had been developed at the scene of occurrence, opened the fire. If nephews were on one side and the uncle or uncles were on the other side the it cannot be said with certainty that who in that state of affair used a weapon of offence, even the identity of which is no established on the record. The benefit of all these circumstances, in my opinion, must go to the accused and the learned Addl. Sessions Judge was not justified in resolving all disputes in favour of the prosecution.
6. For the reasons aforesaid, giving the accused the benefit of doubt, the present appeal is accepted; the conviction and sentence of the appellant are set aside. He should be set a liberty forthwith if not required in any other case in accordance with law.