1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, is directed against the judgment of a Division Bench of the Lahore High Court, allowing Criminal Appeal No. 689 of 1969 and rejecting Murder Reference No. 226 of 1969.
2. The respondent No. 1 herein was tried alongwith his brother Muhammad Rafiq and three others on charges under sections 148/ 149 and 323/149, Pakistan Penal Code, for having committee rioting variously armed with deadly weapons .In the evening of the 2nd of January 1968, and in furtherance of the common object of the unlawful assembly so formed committed the murder of their co-villager Muhammad Yusuf as also caused injuries to Muhammad Hussain and Allah Ditta.
3. They were all convicted by the learned Additional Sessions Judge, Sialkot, on all the aforesaid charges and were sentenced to rigorous imprisonment for three years under section 148, Pakistan Penal Code and six months' rigorous imprisonment each on two counts under section 323/149, P. P.
4. C. In respect of the charge under section 302/149, P. P. C., the first respondent was sentenced to death and the others were sentenced to transportation for life.
5. They preferred a joint appeal against their convictions to the High Court, and the sentence of death imposed on the first res--pondent was referred for confirmation.
6. The High Court took the view that the investigation of this case was dishonest, the dying declaration of the deceased was unworthy of credit, the recoveries were unreliable, the evidence of the Ballistic Expert was of little or no value, and the evidence of the prosecution witnesses was of doubtful veracity. According to the High Court, the defence version was worthy of more credence than the prosecution story and, therefore, the complain--ant party was the aggressor. In the circumstances, the right of self-defence accrued to the respondents, and it could not be said that they had, in the facts of this case, exceeded that right. All the accused were, accordingly, acquitted and the death sentence was not confirmed.
7. The father of the deceased came up to this Court for special leave to appeal and leave was granted to him to consider whether the High Court was right in the view it had taken with regard to the culpability of only respondent No. 1 herein. The petition as against the other accused persons was dismissed.
8. The deceased, who was a B. A., B. Ed. And possibly the Headmaster of the local school, was an influential person. He was, according to the prosecution case itself, instrumental in get--ting the respondent No. 1 elected first as a member and then as the Chairman of the Union Council. But, thereafter, the deceased turned against him because the said respondent, it is alleged, had started indulging in undesirable activities, and, on the 11th of August 1967, a few months before the occurrence leading to his death, actually managed to get a no-confidence resolution passed against the said respondent by the Union Council. As a result of this resolution, the latter was removed from the Chairmanship of the Union Council. It is, therefore, alleged that the said res-- pondent was annoyed with the deceased and actually threatened him with dire consequences.
9. It is in this background that on the 2nd of January 1968 at about evening time, when Allah Ditta (P.
10. W. 14) came to the house of the deceased and told him that he had been publicly slapped by Muhammad Rafiq, a real brother of the respondent No. 1, outside the village mosque, after evening prayers ; saying that Allah Ditta and the deceased were actively opposing his brother Muhammad Safdar ; the deceased proceeded towards the shop of Muhammad Rafiq to enquire from him as to why he had slapped Allah Ditta. Muhammad Hussain son of Shah Din (P. W. 16), Muhammad Hussain son of Abdullah (P. W. 17) and Ramzan (P. W. 15), who were then present at the house of the deceased, also accompanied him.
11. Of these witnesses, Muhammad Hussain son of Abdullah is a brother of the deceased.
12. When they reached near the Ahanqah of Shah Melts to the north, they came across the accused persons, out of whom the respondent No. 1 was armed with a revolver, his brother Rafiq was armed with a gun, and the others had dangs. AS soon as they saw the deceased and his companions, according to the prosecution story, the accused opened the attack. Safdar fired a shot from his revolver at the deceased which hit him on the chest and he fell down. At this stage, the respondent's brother Rafiq started firing in the air and threatening the others that if they came any further, they too would meet the same fate. In spite of this, Muhammad Hussain (P. W. 17), the brother of the deceased, and Ramzan (P. W. 15) claim that they rushed forward, snatched the dangs from the acquitted accused Aslam Younas, and with these dangs inflicted blows on respondent Safdar and his brother Rafiq. In the meantime, Muhammad Hussain, son of Shah Din (P.
13. W. 16), ran back to the house of the deceased, brought out the latter's gun and started firing with it in the air. This, it is said, frightened the accused persons then decamped from the scene.
14. The deceased Muhammad Yusuf was taken to the Dash hospital, some four miles away ; but, it being Eid day, no doctor was on duty there. They were advised to take the deceased to the Civil Hospital at Sialkot. While they were trying to find a conveyance to transport Muhammad Yusuf to Sialkot, Police Sub-Inspector, Gulzar Ahmad, of Daska Police Station, who knew, the deceased from before, met them near the hospital. The deceased was on a cot and was writhing in pain. After a short while, the companions of the deceased managed to procure a car driven by two persons and the injured was removed in it to the Sialkot hospital, 17 miles away. The Sub-Inspector, accompanied by his Assistant Sub-Inspector Muhammad Ayub Shah, also followed them to Sialkot in a public bus.
15. On arrival at the Sialkot hospital, Dr. Muhammad Iqbal Qureshi (P. W. 2) examined the deceased at 9-10 p.m. And found only one injury on the right side of his chest. This was a circular penetrating wound -- " x --" x chest deep 1 -- " below the right nipple, with a corresponding hole fn the shirt, sweater and bunlyan. There was no wound of exit present and the patient was in a state of shock.
16. His pulse was 82 per minute and his respiration was rapid, but his consciousness was, according to the doctor, good. The patient was admitted into the hospital and a medico-legal certificate (Exh. P.
17. M.) was issued.
18. Sub-Inspector Gulzar Ahmad, who had by this time reached the hospital, immediately gave an application (Exh. P. N.) seeking permission to record the statement of the patient, if he was In a fit condition to make one. This certificate was granted by Dr. Muhammad Iqbal and a dying declaration (Exh. P. L.) was recorded by the Sub-Inspector. This formed the basis of the first information report (Exh. P. L./1).
19. After sometime, when the condition of the injured started deteriorating, Sub-Inspector Gulzar Ahmad applied to the Duty Magistrate at Sialkot (Exh P. Q.) for recording the dying declaration of Muhammad Yusuf. The Magistrate went immedi--ately to the hospital and sent for Dr. Muhammad Iqbal Qureshi who certified at 11-40 p m. That the patient was in a fit condition to make a statement (vide Exh. P. Q/2). The Magistrate then commenced recording his statement, but before it could be com--pleted, the injured Muhammad Yusuf expired at about 12-30 a.m, of 3-1-1968. Thereafter, the body was sent to the mortuary for post-mortem examination. The injury statement of Muhammad Hussain (P. W. 17), the brother of the deceased, who was present in hospital, was also prepared and his statement recorded.
20. Sub-Inspector Gulzar Ahmad, who bad by this time reached the hospital, Immediately gave an application (Exh. P. N.) seeking permission to record the statement of the patient, if he was fn a fit condition to make one. This certificate was granted by Dr. Muhammad Iqbal and a dying declaration (Exh. P. L.) was recorded by the Sub-Inspector. This formed the basis of the first information report (Exh. P. L./1).
21. After sometime, when the condition of the injured started deteriorating, Sub-Inspector Gulzar Ahmad applied to the Duty Magistrate at Sialkot (Exh P. Q.) for recording the dying declaration of Muhammad Yusuf. The Magistrate went immedi--ately to the hospital and sent for Dr. Muhammad Iqbal Qureshi who certified at 11-40 p m. That the patient was in a fit condition to make a statement (vide Exb. P. Q/2). The Magistrate then commenced recording his statement, but before it could be com--pleted, the injured Muhammad Yusuf expired at about 12-30 a.m. Of 3-1-1968. Thereafter, the body was sent to the mortuary for post-mortem examination. The injury statement of Muhammad Hussain (P. W. 17), the brother of the deceased, who was present in hospital, was also prepared and his statement recorded.
22. The Police Officer next proceeded to the scene of occurrence on the following day at about noon.
23. There he recorded the state--ments of Allah Ditta, Ramzan and Muhammad Hussain, son of Shah Din. Injury statement of Allah Ditta was also prepared. From the scene of occurrence, two empties of bullets were recovered (vide Exh. P. B.) Blood-stained earth was also seized from the place of occurrence, which appeared to be within the boundaries of the graveyard Shah Mela.
24. From the place of occurrence, the Police Officer proceeded to the house of the respondent Safdar.
25. There he found Safdar lying in an injured condition on a cot still wearing his blood--stained clothes.
26. His blood-stained clothes were secured (vide Exh. P. C.), and the Assistant Sub-Inspector of Police, Muham--mad Ayub Shah, was deputed to search his house. As a result of the search, a revolver licence, a gun licence, a spear and a spear-head were recovered and taken into possession (vide bah. P. G.). Frcm there, the Police Officer went to the house of Muhammad Rafiq and found him also lying on a cot in an injured condition. He too was wearing his blood-stained clothes which were taken into possession. The other accused were also sum--moned there and taken under arrest.
27. From the person of accused Younas, a blood-stained khes was seized (vide Exh. P. F.), while from the person of the accused Aslam a blood-stained chadar and a khes were taken into possession.
28. Mst. Fatima, the sister of respondent Safdar, voluntarily appeared before the Police Officer at this stage and complained that she too had been injured and consequently her injury state--ment (Exh. P. U.) was prepared. All the injured persons were then sent for medical examination. The respondent Safdar, his" brother accused Rafiq, the witness Muhammad Hussain son of Abdullah and Allah Ditta were examined by Dr. Asghar Hamid Qureshi, on the 5th of January 1968. Safdar was found to have nine blunt weapon injuries on his person : two of these were lacerated wounds bone deep on the scalp. Muhammad Rafiq had eight injuries, six of which were caused by blunt weapons and two by a sharp-edged weapon. One of these injuries was a multiple injury consisting of eleven lacerated wounds on the scalp on the top and towards the right side of the mid-line. The largest of these was 1 -- " x -- " x bone deep and the smallest was -- " x -- ' x bone deep. One of the incised injuries was also on the back of the scalp.
29. Mst. Fatima was examined by a lady doctor at Daska hospital and she was found to have five injuries, which were all blunt-weapon injuries of a simple nature. One of them was a contusion 6" x 4' on the left side of her back 7' below the inferior angle of the left scapula.
30. As against this, the deceased had only one gun-shot injury on his chest ; his brother Muhammad Hussain (P. W. 17) had four injuries of a simple nature ; and Allah Ditta (P. W. 14) bad two injuries, again, of a simple nature. The injuries on the last two were caused by blunt weapons and the doctor had to concede in cross-examination that the injuries were of such a minor nature that they could have been caused by coming into contact with a hard substance or even by a friendly hand.
31. The post-mortem examination of the deceased shows that the bullet which had penetrated his chest had fractured the fifth rib near the costal cartilage, the sixth rib on the left posterior side, punctured the right pleura, middle lobe of the right lung and lodged in the 6th inter-costal muscle from where it was recovered (vide Memo. Exh. P. Y.).
32. On the 12th of January 1968, the Sub-Inspector brought the respondent Safdar to his village as he had offered to produce the revolver. He led the police party to his cattle-shed and from its northern corner he dug out a revolver (Exh. P. Z) which was wrapped in a handkerchief. The revolver and the handkerchief were taken into possession (vide Exh. P. H.) in the presence of witnesses Umar Din and Abdullah.
33. The bullet recovered from the body of the deceased and the two empty bullets recovered earlier from the scene of the occur--rence were sent to the Ballistics Expert on the 10th of January 1968, and the revolver recovered on the 12th of January 1968, was sent to the Expert on the 15th .Of January 1968, through constable Bahadur Khan (P. W. 12). These dates have been confirmed by Muhammad Sarwar (P. W. 5), the Arms Expert, who after careful examination of the bullet and the crime empties with test empties and test bullets prepared by him from the revolver, found that both the lead bullets recovered from the body of the deceased and the crime empties had been fired from the revolver in question.
34. After this investigation, the accused were put up for trial Before the trial Court the version of the accused Safdar and Rafiq was that the incident had occurred in an entirely different manner.
35. According to Rafiq, sometime earlier, Allah Ditta and one Ghulam Muhammad had come to his shop and informed him that Allah Ditta wanted Ghulam Muhammad to go to the baithak of Abdullah, the father of deceased Muhammad Yusuf, to attend a meeting which had been convened to decide about the future of Ghulam Muhammad's daughter who was married to one Ismail. Ghulam Muhammad was refusing to attend the meeting and insisting that the meeting should be held at the baithak of the respondent Safdar. This led to an altercation in which Rafiq claims that he intervened and slapped Allah Ditta warning him not--to mis-behave with Ghulatn Muhammad. After this Allah Ditta left the shop and went to the baithak of the deceased. The deceased then came to his shop armed with a gun. He was accompanied by his brother Muhammad Hussain (P. W. 17) and Allah Ditta (P. W. 14) armed with a hatchet and a dang respec-- tively. No sooner Rafiq saw them, he shouted for help and on his cries his brother Safdar came out of his house armed with a stick followed by his sister Fatima; but before they could come to his rescue he had been inflicted a number of blows. Then Safdar and Fatima also received injuries. In the course of this fight, Safdar managed to catch hold of the gun of the deceased with a view to disarm him; but at this time Rashid, another brother of the deceased, fired his revolver at Safdar which missed him, as he had taken a turn, and hit the deceased Yusuf on his chest.
36. So far as the other three accused were concerned, they com--pletely denied their participation and charged the prosecution witnesses for having implicated them falsely. The only part that they took according to their story was to reach the place after the fight was over and to pick up Safdar and his brother Rafiq who were lying injured there and take them to their house.
37. The prosecution, in support of its case, relied on the two dying declarations, one recorded by the Police Officer and the other by the Magistrate, the ocular evidence of the four eye--witnesses of whom two, namely, Muhammad Hussain and Allah Ditta, were injured, the recoveries, the evidence of the Ballistics Expert and the evidence of motive.
38. The trial Court did not accept the incomplete dying declaration recorded by the Magistrate, but relied on the dying declaration recorded by the Police Officer, the ocular testimony, the motive, the recovery evidence and the Expert evidence. It rejected the defence theory as absurd. According to the trial Court, the medical evidence also corroborated the dying declara--tion and the ocular testimony. The accused were, therefore, convicted.
39. The High Court, on the other hand, took the view that, since the deceased was known from before to the Police Officer, the latter had coached up the deceased while he was being taken from Daska to Sialkot, and the statement recorded as the dying decla--ration at the hospital was, therefore, not a statement which could be relied upon. The High Court was also of the view that this was not recorded at the time it is alleged to have been recorded and, therefore, the first information report was prepared after considerable delay and deliberation. The High Court also found that the prosecution witnesses were interested witnesses. Even though Allah Ditta and Ramzan (P. Ws. 14 and 15), who are brothers inter se, were not related to the deceased and Rafiq they belonged to the party of the deceased which was opposed to the respondent Safdar and his party. The injuries on Allah Ditta and Muhammad Hussain (P. W. 17) were considered to be self---suffered and, therefore, not reliable. The prosecution story was also found to be false, because, no .12 bore empties had been recovered from the place, although, according to the prosecution witnesses, Rafiq had at first fired several shots to keep the attac--kers away, and then Muhammad Hussain son of Shah Din (P.
40. W. 16) had arrived on the scene with a gun, fired and driven away the accused. The prosecution version that in spite of the firing of gunshots by Rafiq, both Ramzan (P. W. 15) and Muhammad Hussain (P. W. 17) had mustered up courage to snatch away the dangs of acquitted accused, Younas and Aslam, was found to be improbable. The medical evidence regarding the presence of a large number of injuries on Safdar, his brother Rafiq and sister Fatima, including injuries by sharp-edged weapons, was held to have completely belied the prosecution story that the accused were the aggressors.
41. The High Court felt that, in these circumstances, the defence version furnished by Rafiq was more probable, and that after the slap had been administered to Allah Ditta by Rafiq, the complain--ant party came out variously armed to chastise Rafiq. The accused Safdar came to his brother's rescue but he too was attacked. Then they must have tried to defend themselves in the exercise of their right of private defence, and if in the course thereof Safdar had fired a single shot from a revolver which hit the deceased, it could not be said that he had exceeded his right of private defence. The prosecution story that Safdar fired first was held to be false. If Safdar and Rafiq had both been armed as alleged by the prosecution then the witnesses would not have been able to inflict so many injuries on these two accused.
42. Since leave was granted in this case to re-examine the evi--dence, we have gone through the evidence with the assistance of the learned Counsel appearing on behalf of the appellant in this case. While we are not Impressed by the reasons given by the High Court for holding the investigation to be dishonest or for holding that the dying declaration was recorded after consultation and considerable delay, we do feel that the dying declaration cannot be relied upon as the Investigating Officer was not care--ful enough to take the precaution of excluding the relatives of the deceased, who had carried him to the hospital, at the time of A recording of the dying declaration. It was not possible for the Police Officer to have travelled in the same car in which the deceased was brought to the hospital, because, according to the unchallenged evidence of the prosecution, two people were already in the car, and after the injured had been put into the car, there would not be much room left for his relatives and the Police Officers to travel by the same car to Sialkot.
43. We also see no reason to doubt that the recording of the dying declaration commenced at 9-10 p.m. When the certificate was granted by the doctor and it was concluded at 9-45 p.m., as has been recorded on the body of the original dying declaration.
44. If in fact the first dying declaration was procured as a result of tutoring by the Police Officer then he would not have commit--ted the folly of again calling a Magistrate for recording another dying declaration. This Magistrate did take the precaution of excluding the relatives from the room, and had the deceased not expired during the recording of the dying declaration, the latter dying declaration would have been given preference over the dying declaration recorded by the Police Officer.
45. Unfortunately, this dying declaration was incomplete and was excluded from consideration. A dying declaration, which is incomplete upon its face, is inadmissible in evidence, because, no one can tell what the deceased might have added. This view appears to find support also from a decision of the Privy Council in the case of Cyril Waugh v. The King (PLD 1949 P C 299). This does not however, mean that the dying declaration recorded by the police officer was reliable. It too substantially gave the prosecution story which has now been given by the prosecution witnesses.
46. This story was clearly not the true story, because, as rightly pointed out by the High Court, if the accused side were, as stated by the prosecution witnesses, lying in ambush armed with a gun and a revolver, then the complainant side would not have escaped with only one fire-arm injury and few other very minor blunt weapon injuries.
47. The prosecution evidence does not also explain the incised wounds on Rafiq, nor does it give any adequate explanation for the absence of .12 bore empties from the place. If as stated by the prosecution witnesses Ramzan and Muhammad Hussain had actually managed to snatch the longs of Aslam and Younas, they should have produced the same before the Police Officer. This was not done. This shows that the prosecution witnesses had suppressed the truth with regard to the manner in which the incident commenced.
48. On the other hand, the defence admitted that an incident did take place at or near the place alleged by the prosecution and at or about that time. The defence also admitted that it started as a result of the slapping of Allah Ditta by Rafiq after which Allah Ditta retired to the baithak of Abdullah, the father of the deceased. To this extent both the prosecution and the defence versions are common, but variations start from this point onwards.
49. If it is accepted that the immediate cause of the quarrel was the slap given to Allah Ditta, an elderly person, then the motive would be on the side of the complainant to avenge this insult, and it is not unlikely that it is they who came out armed, possibly with dangs, and attacked Rafiq at his shop. At this stage, Safdar on nearing the alarm raised by Rafiq also came out armed with a dang and a revolver. At first a dang fight took place outside the shop and the compound of the graveyard in which the accused n side consisting of only two male persons received a larger number of injuries, some of which could well have proved more dangerous as they were on vital parts of the body like the head. In the course of this fight, it is quite possible that Mst. Fatima also came out and received some lathi blows and it may well be that at this stage the respondent Safdar seeing his sister being beaten took out his revolver and fired a shot which hit the deceased on the chest. This revolver shot must have deterred the complainant party who, in all probability, fell back, not being armed with any kind of lethal weapon, and this gave the opportunity to the accused to retreat to their house nearby.
50. The above sequence of events, though at variance with the defence story, which is equally untrue, has been taken into consideration, because, we have found ourselves unable to reject the evidence of the recovery of the pistol at the instance of the respondent Safdar himself from the corner of his cattle-shed where it was lying buried under the ground. No one but Safdar could have known about the location of this pistol. We see no reason to reject the evidence of this recovery which has been supported by Umar Din (P. W. 6), a lambardar of the village, and Abdullah (P. W. 7).
51. There is no suggestion that the witness Umar Din was in any way hostile to the accused persons or was interested in the deceased.
52. We cannot also agree with the High Court that the opinion of the expert, who found the crime bullet empties and the bullet recovered from the body of the deceased to match with the revolver, was unreliable merely because the markings on the percussion caps were so small as not to be visible even by a magnifying glass. This does not mean that they would not be visible in the enlarged photographs which had been prepared for comparison. There was no justification also for discarding these photographs, because, the nose of the bullet had not come into the photograph and only the upper side of the bullet containing the percussion cap had come into the photograph.
53. The opinion could not also be rejected, because, the expert had not compared the crime empties with test bullets fired from other revolvers. He had in fact prepared eight test empties from the revolver sent to him and the markings of the crime empties tallied with some of them. This was quite sufficient.
54. There was also no chance of planting or manufacturing false crime empties in this case. The crime empties were actually despatched on the 10th before the recovery of the revolver and the revolver was sent within three days of its recovery on the 15th to the Ballistics Expert. This evidence was, in our opinion, quite reliable and did establish that the deceased Yusuf had died as a result of the shot fired by the revolver of Safdar ; but this, as we have stated earlier, does not, in our opinion, prove that the revolver was fired in the circumstances alleged by the prosecution.
55. In our opinion, in a case of this nature, where neither the prosecution nor the defence come out with the true version and the Court is called upon to sift the evidence in order to discover as to what portion of it can be accepted and what has to be Sad rejected, it is always a delicate and a difficult task. If the discrepancies are of such a serious nature that no reliance can beta placed on the prosecution story at all then the benefit of that will necessarily have to go to the accused.
56. Unless there is some independent and reliable evidence bringing home the guilt to one or the other of the accused persons, the prosecution cannot succeed.
57. In the present case, since the respondent Safdar and his brother Rafiq had admitted their participation in the incident, it cannot be said that they were not there ; but one has still to examine as to the part they played. Did they act in the manner alleged by the prosecution ; if not, then is the evidence such that there may be a reasonable possibility of their having acted in a different manner which would altogether exculpate them or justify their action then the benefit of that possibility must be given to the accused persons.
58. In the present case, as we have stated earlier, having found that both sides were suppressing the truth, we have, having regard to the number and the nature of injuries suffered by the accused persons, come to the conclusion that the possibility of their having acted in self-defence was more probable in the circumstances of this case. If this right accrued to them, then the firing of a single revolver shot, which unfortunately resulted in the death of one of the opposite-party, cannot be said to have been done in excess of that right.
59. We find it difficult to accept the prosecution theory or the contention now put forward by the learned counsel that the revolver shot must have been fired first in cold blood. If that had been so, then, having regard to the normal course of human conduct, the complainant side, being not armed with any kind of fire-arm, would have departed in the interests of their own safety from the scene of occurrence or at least taken cover behind the graves which were there in abundance. The fact that they did not do so but actually succeeded in inflicting a much larger number of injuries on the accused persons, suggests that the shot must have been fired at a later stage during the course of the fight when the accused persons felt that they were being over--powered and apprehended death or grievous hurt. In these circumstances, we are of the opinion that, even accepting that Safdar fired the shot, he was rightly acquitted, because, he fired it in exercise of his right of private defence and did not exceed that right.
60. For the reasons given above, we are unable to disagree with the conclusion reached by the High Court, though for some. What different reasons, and must, therefore, dismiss this appeal.
61. This appeal is, accordingly, dismissed.