ASLAM RIAZ HUSSAIN. J.-Shamir son of Inayat, aged 37 years, resident of Chak No. 160, Tehsil and District Jhang was tried by Ch. Muhammad Sharif, Additional Sessions Judge, Lyallpur Division, at Jhang, for the murder of Nur Elahi, on the night between 3/4-8-1967. The learned trial Judge found him guilty of the murder, convicted him under section 302, P. P. C. And sentenced him to transportation for life, by his order dated 1-8-1968. He has filed a appeal through jail' against his conviction and sentence.
2. The occurrence took place at about mid-night. The F.I.R. In the case was lodged by Muhammad Bakhsh P. W. 10, the father of Nur Elahi deceased, at Police Station Mochiwala, situated at a distance of 6 miles from the place of occurrence. The story given in the F. I. R. Is that on the night of the occurrence Nur Elahi deceased, his father Muhammad Bakhsh P. W. 10, the first informant, Abdur Rehman son of Abdul Ghani P. W. 11, and Abdur Rehman son of Ali Bakhsh P. W. 12, the uncle of the deceased were sleeping on separate cots, in the village chowk. Abdur Rehman son of Abdul Ghani P, W, 11 was a school master, He was reading in the light of a lantern till late at night. He fell asleep while reading but the lantern kept on burning. At about mid-night the three eye-witnesses woke up on hearing the report of a gun-fire and saw Shamir appellant, armed with a gun, standing near the cot of Nur Elahi deceased. They raised an alarm whereupon the appellant told them to keep quiet or else he would shoot them also. He then fired two more shots at Nur Elahi deceased in quick succession and ran away towards the east. The witnesses did not chase him out of fear. Nur Elahi died immediately as a result of the shots fired at him. Three injuries were noticed on his body, each one of which is mentioned individually by Muhammad Bakhsh P. W. 10 in the F. I. R. One was on the right mandible, the second was on the left side of the chest, just below the arm pit and the third was at the back of the right arm pit. Leaving the dead body under the care of the Chowkidar, Muhammad Bakhsh P. W. 10 proceeded to the Police Station and lodged the report Exh. P. A. Which was recorded by Ch. Muhammad Shafi S. I. P. W. 13 at 4 a. m. On 4-8-1967.
The motive for the crime was stated to be that Shamir appellant suspected Nur Elahi deceased of having illicit connec--tion with his daughter Mst. Dullan.
3. After recording the F. I. R. Ch. Muhammad Shafi S. I. P. W. 13 proceeded to the spot. He found the dead body lying on cot. After preparing the injury statement and the inquest report he sent the dead body for autopsy under the escort of a foot constable. He took 8 pellets Exh. P. 1/1-8, which were lying under the cot of the deceased, into possession vide memo. Exh. P. B. He also took into possession the blood-stained earth from under--neath the cot, vide memo. Exh. P.C. He found two empty cartridges Exhs. P. 2 and P. 3 lying near the place of occurrence and took them into possession vide memo. Exh. P. D. He took possession the blood-stained cot of the deceased P. 5, two blood-stained khes P. 6/1-2 and a blood-stained pillow P. 7 vide memo Exh P. E The memos.
Were attested by Muhammad Bakhsh P.W. 10, Abdur Rehman son of Abdul Ghani P. W. 11, apart from Ch. Muhammad Shafi S. I. P. W. 13, the Investigating Officer himself.
4. The S. I. Searched for Shamir appellant but he was not available. He was ultimately produced before the Investigating officer on the 5th day, i.e. On 9-8-1967, and was arrested. While in police custody, the appellant led to the recovery of a single barrel---gun, P. 10, from the ceiling of his dhari. It was taken into posses--sion and sealed into parcel vide memo. Exh. P.G. The gun as well as the cartridges were sent to the Forensic Science Laboratory for the opinion of the Fire-arms Expert as to whether or not the crime empties had been fired through gun Exh. P. 10.
5. After the completion of the investigation, the appellant was challaned under section 302, P. P. C.
And was ultimately committed to stand his trial before the Court of Session.
6. At the trial the prosecution produced 13 witnesses in support of its case including three eye- witnesses. Shahjehan Khan, the Fire-arms Expert, who appeared at the trial W-P. W. 2 stated that he had carried out of- the required test and found that the two crime empties P. 2 and P. 3 had been fired from gun Exh. P. 10.
7. The appellant, when examined, denied his guilt, pleaded innocence and stated that he was got falsely involved in the case by Sahib Khan, the Chairman of the local Union Council and Gulsher Khan, the Lambardar. He denied the alleged motive as well as the recovery of gun Exh. P. 10 from him. He also denied that he had absconded and stated that he had appeared before Rana Muhammad Afzal S. H. O., Mochiwala, on 4-8-1967. He did not, however, produce any evidence in defence.
8. We have heard the learned Slate counsel who has carried us through the entire record and has, brought out all the points for as well as against the prosecution.
It may be mentioned at the outset that the learned trial Court disbelieved the recovery of the two empty cartridges P. 2 and P. 3 mainly on the ground that since admittedly they had not been discovered till the arrival of the police in the morning and a large number of persons had admittedly gathered around the cot of the deceased after the incident, they should, in the normal course of events, have got trampled under the feet of those persons and got crumbled and disfigured, yet they are stated to have been found, in perfect condition. Apart from this the Investigating Officer admittedly did not make any mention of these empty cartridges in the inquest report. We are inclined to agree with the finding of the learned trial Court that the recovery of the two empty cartridges is doubtful.
9. In view of the fact that the recovery of the crime empty is disbelieved, the recovery of gun P. 10, as well as the opinion of the Fire-arms Expert become redundant and immaterial. The only evidence is the medical evidence and the evidence with regard to the existence of a motive.
10. The eye-witnesses in the case are Muhammad Bakhsh P. W. 10, the father of the deceased, Abdur Rehman son of Ali Bakhsh, P. W. 12, the uncle of the deceased and Abdur Rehman son of Abdul Ghani P. W. 11, the school-master. It will be noticed that while the first two eye-witnesses are closely related to the deceased the third eye-witness, namely Abdur Rehman son of Abdul Ghani P.
W. 11 is an independent and disinterested person. Even the other two eye-witness are not said to have had any previous enmity with the appellant, but it was contented that they had been influenced into deposing against the appellant by Gulsher Khan and Sahib Khan, who were said to be inimical towards him. There .Is, however, nothing on the record to substantiate this contention.
As a matter of fact these two persons are close relatives of the appellant himself inasmuch as the grand--father of the appellant was the real brother of the father of Gulsher Khan and Sahib Khan.
This is evident from the state--ment of Muhammad Bakhsh P. W. 10, who stated during his cross--- examination that "Shamir is the grandson of Muhammad and Ahmad Khan, the father of Gulsher Khan and Sahib Khan, is the real brother of said Muhammad".
11. The question, however, is as to whether that eye-witnesses are telling the truth, for the fact that they are not related to the deceased or are ostensibly disinterested, is not by itself any guarantee for the fact that they are also telling the truth. As held by Sajjad Ahmad Jan, J. In Lakhmir v. The State (PLD 1968 Quetta 7), whatever the attributes of a witness, the best test of the correctness of his statement, in the final analysis, is its own inherent worth in point of consistency as tested against the physical possibilities and the circumstances surrounding the event, to which his testimony relates. We notice that in the present case the medical evidence directly contradicts and belies the story given in the first information report. It will be recalled that according to the F. I. R.
The eye-witnesses woke up on hearing the report of a gun fired by the appellant and that thereafter he fired two more shots at the deceased within their sight. The post-mortem examination conducted by Dr. Tajammul Hussain P.W. 1 revealed the following injuries on the body of the deceased :-
(i) A gaping wound with lacerated margins (blackened margins) 8 x 3--. Bone deep, on the right mandible, starting from the middle line up to its angle. This part of mandible was missing along with all the teeth. Right lower lip muscosa and muscles, --th of the left mandible from its middle line was also missing along with first incisor tooth. All other teeth were present.
(ii) (a) A fire-arm wound of entrance with inverted margin: Blackened edges 1--" x 1". Chest cavity deep on left chest. Lateral aspect --"' below middle of left axilla, wound directed transversely upwards, fracturing 5th and 6th left ribs.
(iii) (b) The pellets came out from the right side rupturing left lung, heart, the right lung, and the right 4th, 3rd and 2nd ribs, appearing as wound of exit on right side of the chest. Lateral aspect --" below middle of right axilla.
(iv) Multiple irregular abrasions of various sizes over an area of 5--"x 3" on top of right chest frontal aspect. - The doctor opined that while injury Nos. 1 and 2 were a fire--arm, injury No. 3 was caused by a blunt weapon. He explained further that injury No. 3 could be caused by falling or quivering in agony. It will be noticed that injury described at No. 2, consists of two separate wounds, i. e. a wound of entrance on the left side of the chest and wound of exit below the right shoulder underneath the arm pit.
The medical evidence thus revealed that the three wounds found on the person of the deceased 'had, in fact, been caused by two shots, and not by three separate shots, as stated in the F.I.R. At the trial, however, the eye-witnesses attempted to bring their statements in conformity with the medical evidence and modified their version by saying that after they woke up on hearing the first shot, they saw the appellant firing another shot which hit the deceased near the axilla and that he fired a third shot in the air, merely to scare them. According to modified story the first shot which had been fired by the appellant when the eye-witnesses were still asleep had caused injury No. 1 on the mandible of the deceased, and the third shot had not caused any wound whatsoever because it had been fired in the air just to frighten the eyewit--nesses.
12. It appears that on noticing three distinct and separate wounds on the body of the deceased, it was thought that they had been caused by three separate shots. Muhammad Bakhsh P.W. 10, the deceased's father, who purports to be an eye-witness, therefore got recorded in the F. I. R. That on being awakened by the report of first shot he and the other two eye-witnesses saw the appellant firing two more shots at the deceased. But when the post-mortem revealed that the three wounds had, in fact, been caused only by two shots, the eye-witnesses modified the version to bring it in conformity with the medical evidence and stated at the trial that when they woke up on hearing the report of the first shot they saw the appellant firing only one shot at the deceased and that he had fired the third shot in the air, just to scare them.
It shall be noticed that the wound of entry of injury No. 2 was situated on the left axilla and the wound of exit was situated on the opposite side i. e. On the right side of the chest. These injuries are stated by the eye-witnesses to have been caused by the second shot fired by the appellant. If the deceased was lying flat on his back at that time (as the eye-witnesses and the Investigating Office subsequently found him) then, as indicated by the direction of the injuries, they, i. e. The injuries, could have been caused only if the person firing the shot was at the same level as the deceased.
Since, however, according to the witnesses the appellant fired the shots from a standing position, while the deceased was lying on a cot, their evidence was again in danger of being contradicted by the medical evidence. Another modification was, therefore, introduced at the trial and two of the eye-witnesses stated that although the appellant was standing when he fired the second shot, but he had fired it by "bending a bit". This modification, however, is not sufficient to achieve the desired result, because the injury in question could have been caused either if the person who fired the shot (i. e. Appellant) was standing and the deceased was lying on his side, with left side up (which of course is not the prosecution case), or else if the person who fired had sat down rear the cot in order to bring the barrel of the gun at the same level as the chest of the deceased, which again is not the case of the prosecution. The result is that the first version of the incident as given in the F.I. R.
By one of the alleged eye-witnesses, stands badly contradicted by the medical evidence and it is evident that all the three eye-witnesses have attempted at the trial, to reconcile their statements with the view expressed by the doctor who had performed the post-mortem examination. This conduct on their part casts serious reflection on their veracity and credibility. It is evident that despite their apparent independent posture they are in fact not truthful witnesses and cannot be relied upon for maintaining the conviction of the appellant.
13. There seems to be considerable truth in the suggestion of the defence that the deceased was sleeping alone at the place of the occurrence on that fateful night; that some one had fired at and killed the deceased during the night which was admittedly a dark one; that before any one could reach the spot the culprit had fled away and no one had in fact seen the occurrence and that a story was fabricated in the light of the visible injuries found on the body of the deceased. There are also other indications on the record which support this view. As already mentioned it is admitted by the P. Ws, that the night was a dark one. The P. Ws. Could not see the culprit without there being any lamp or other source of light. It was, therefore, necessary to introduce a lantern. Further, there had to be some excuse for the lantern to be burning at that late hour in the night. Hence the story that Abdur Rehman P. W. 11 was studying for his B. A. Examination and while studying he went to sleep and the lantern kept on burning. When questioned about it, Abdur Rehman son of Abdul Ghani P. W.
11 stated that------- "I used to blow the lantern off before going to sleep but on that day I went to sleep and could not blow it out."
In other words it was only on that particular night that the lantern was left burning accidentally.
Had Abdur Rehman P.W. 11 not forgotten to blow out the lantern, the appellant naturally could not have been seen. We are afraid the coincident is too thick to swallow and we cannot bring ourselves to believe it. The recovery of empty cartridges from the spot, which was later matched with gun allegedly recovered from the appellant has already been disbelieved. For the reasons, mentioned in paragraph No. 8 above, it appears to us that they had in fact been planted by the Investigating Officer to strengthen the prosecution case. The story of the abscondence of the appellant and his arrest on 9-8-1972, after 5 days also appears to be false. It is pertinent to note in this connection that Abdur Rehman son of Ali Bakhsh P. W. 12, the uncle of the deceased, had stated before the committing Magistrate that Shamir appellant was arrested on the afternoon of the next day following the night of the occurrence. At the trial, of course, he denied having made this statement and had to be confronted with his earlier statement. This admission by the deceased's uncle before the committing Magistrate belies not only the story of the appellant's abscondence but also the assertion that he was arrested 5 days later, on 9-8-1967. If the story of the appellant's abscondence and his arrest on 9-8-1967 is disbelieved, the story of the recovery of gun P. 10 on that date (i. e. On 9-8-1967) from his dhari, at his instance, also falls to ground. In this connection it may also be mentioned that gun P. 10 allegedly recovered from the appellant is a single-barrel .12 bore gun. Therefore, if the story put forward by the eye-witnesses is believed, the appellant must have reloaded his gun before firing each of the two last shots. The eye-witnesses have, however, made no mention of this Apart from this, it is highly improbable that the culprit would have stayed on at the spot, after firing the first shot, to re-load the gun twice and fire two more shots. When he had the opportunity of firing the first shot from such close quarters, he had no need (if he was armed with a single-barrel and not a double-barrel gun) to fire another shot for it would involve the risk of being `seen by the persons allegedly sleeping near the deceased or the arrival of the other persons from the neighbouring houses.
In the light of the medical evidence that the injuries on the deceased were the result of only two shots, as well as the natural probabilities of the case, it appears to us that whoever had shot at the deceased was armed with a double-barrel gun and fired two shots in quick succession, causing the three injuries and made good his escape in the darkness of the night. For this reason also the recovery of gun P. 10, therefore, does not appear to us to be genuine.
14. In view of the above discussion we are of the opinion that the evidence on the record is not such on which it is safe to maintain the conviction of the appellant. We, therefore, accept the appeal and set aside the judgment dated 1-8-1968 of the trial Court. The appellant should be set at liberty if he is not wanted in any other case.