' MUHAMMAD SHARIF, J.--This murder reference and the criminal appeal emerge out of the judgment, dated 16-6-1985 pronounced by Ch. Manzoor Hussain Basra the then learned Sessions Judge, Bahawalnagar, who had convicted the appellant under section 302, P.P.C. And had awarded him death sentence. He was fined Rs,2,000 or in default thereof to undergo six months' R.I. Rs,2,000 were directed to be paid to the heirs of the deceased by way of compensation as envisaged under section 544-A, Cr.P.C. He was also convicted under section 452, P.P.C. And was ordered to suffer three years' R.I. And a fine of Rs,1,000. In default of the payment of fine, the appellant was ordered to undergo three months' R.I. The learned Sessions Judge has referred this case to us under section 374, Cr.P.C. For the confirmation of the death sentence. Both the murder reference and the criminal appeal are being decided by means of this consolidated judgment.
2. The facts of this case as narrated in the F.I.R. By Noor Samand deceased, in substance, are that two months prior to this occurrence on the eve of the wedding ceremony of Muhammad Ismail son of Muhammad Sadiq, there occurred a fight between Noor Hassan son of Nawab appellant and Ghafoor, the wife's brother of Noor Samand, in which Noor Samand had helped Ghafoor. In order to wreak vengeance on 25-6-1984 at mid-night, Nawab appellant while armed with a pistol and his brother Jalal empty-handed committed criminal trespass in the house of Noor Samand complainant, who was sleeping in the courtyard of his house along with the inmates of his family.
Noor Samand was awakened by the noise of footsteps of the assailants and Jalal, the alleged accomplice of the appellant, said that they would teach Noor Samand a lesson of helping his brother-in-law. Nawab fired at Noor Samand with his .12 bore pistol which hit him in the abdomen.
After hearing the report of the pistol shot, Noor Jamal, the real brother of Noor Samand, Murad his uncle and one Munir came there. At the sight of the prosecution witnesses, the appellant and his accomplice fled away. Noor Samand was taken towards the police station and the Police Officer met on their way to the police station near touring Talkie where Noor Samand dictated the report Ex.P.C.
3. Noor Samand was taken to the Hospital and Dr. Noor Khan, Medical Officer, Rural Health Centre, Mandi Sadiq Ganj, P.W.1 medically examined him and observed the following injuries on his person:
(1) A gun wound circular in shape 3 c.m. x 2 c.m. x 4 c.m. On the left side of abdomen in left hypochondrain region about 9 cm. Below the left nipple. Profuse bleeding from this wound. There seem injury to the gut.
(2) An irregular gun wound 5 c.m. x 3 c.m. x 1-1/2 c.m. Of right thumb of right hand.
(3) A lacerated gun wound 7 c.m. x 2 c.m. x 1 c.m. On the back of left forearm just above the left wrist joint.
(4) 10 to 12 small wounds on the left side of the neck and left chest.
(5) A lacerated wound 1 c.m. x 4/4 c.m. x 1/4 c.m. On the back of left forearm.
' Injury No,1 was declared dangerous while the rest of the injuries were found simple in nature. Noor Samand died on 25-6-1984 at 11-57 p.m. In the Hospital and the autopsy on his dead body was performed by Dr. Capt. Abdul Majeed, Medical Officer, D.H.Q. Hospital, Bahawalnagar, PW.2, who had reported the following injuries on his person:-
(1) One lacerated wound 2-1/2 c.m. x 2 c.m. x abdominal cavity deep on the left side of abdomen in the left hypochondriac region 12 c.m. Below the left nipple. The wound was oval in shape and margins were inverted. No blackening and scorching was present around the margins of the wounds. (Fire-arm wound of entrance). One pellet was recovered from the wound which was sealed and handed over to the police.
(2) One lacerated wound 5 c.m. x 2-1/2 c.m. x bone deep on the back of right thumb. The underlying bone was found fractured under the same.
(3) One lacerated wound 7 c.m. x 1-1/2 c.m. 1/4 c.m. On the back of left forearm 1 c.m. Above the wrist joint. The direction was oblique.
(4) One lacerated wound 3 c.m. x 1/2 c.m. x 1/4 c.m. On the back of left wrist joint. Direction was oblique.
(5) Multiple lacerated wounds on an area of 14 c.m. x 3 c.m. On front of left side of the neck and chest 9 c.m. Below the left ear. Each wound was oblique in direction and the skin in between the wounds was congested.
' Dr. Capt. Abdul Majeed is of the opinion that the death was caused due to haemorrhage and shock on account of injury No,1 which was sufficient to cause death in the ordinary course of nature.
4. Mst. Mehran Bibi,the wife of Noor Samand deceased, figured in the witness-box as P.W.8 and has narrated that her husband was shot at by Nawab appellant in the abdomen in her presence who fell to the ground. The motive for the commission of this crime is stated to be the assistance lent by the complainant to his brother-in-law Ghafoor who had fought against Noor Hassan, the son of the appellant, and Noor Hassan was given 2/3 Danda blows by Ghafoor. Mst. Mehran Bibi had not attended that marriage and whatever she has stated about the motive is nothing but hearsay. She has stated before the police, as is evident from the copy of her statement Ex.D.D., that Noor Samand on receiving the pistol shot had fallen on the cot. The cot was not found blood-stained, according to the statement of Rana Ali Gauhar P.W.7.
5. Noor Jamal PW.9 has corroborated the fact that the appellant had shot at his brother Noor Samand and the recovery of pistol P.3 was effected 23 days after this occurrence. He has stated that the intervening wall between his house and the house of the complainant is 3 feet high. He had gone to the spot after hearing the report of the pistol shot and in the meantime he was not expected to see the entire incident because it appears to be a "hit and run" affair Noor Jamal P.'W.9 has rightly been disbelieved by the learned Sessions Judge. He has also not believed the delayed recovery of pistol Ex.P.3.
6. The learned trial Court has relied on the statement of Mst. Mehran and the dying declaration of Noor Samand. Mst. Mehran is the wife of the deceased and she has given a divergent statement as to where her husband had fallen after sustaining the fire-arm injury. She has stated before the learned trial Court that her husband fallen to the ground whereas before the police it was made clear that he had fallen on the cot which was not found stained with blood. In the circumstances, it is difficult to believe her in a case of capital charge.
7. As regards, the dying declaration of Noor Samand, the report of the doctor was not obtained whether Noor Samand who was grievously injured by a fire-arm was fit to make a statement or whether he was under the immediate apprehension of death. When he was produced before the Police Officer he was accompanied by a number of relatives and the presumption is that they must have helped Noor Samand in making a statement to the Police Officer which was made at a place other than the police station. In Munawar and 2 others v. The State 1983 P Cr. L J 2075 it has been adjudicated that where the opinion of the doctor whether or not the injured is fit to make a statement and the deceased is not conscious of the fact that it may be his last declaration and dying declaration is recorded by a Police Officer then it loses the sanctity of a dying declaration. In Abdul Majid alias Majha v. The State 1976 P Cr. L J 545, it has been held that when the statement of the deceased was neither recorded by the doctor nor by the Magistrate or any other independent official then such statement was held a mere statement under section 161, Cr.P.C. And cannot be used as dying declaration. There is no evidence on the file that Noor Samand knew that it was his last declaration nor we can infer from the evidence that he was under the immediate apprehension of death. The learned trial Court has, therefore, erred in treating the F.I.R. As dying declaration of Noor Samand.
8. The F.I.R. Was lodged at a place other than the Police Station and the presumption is that it was recorded after preliminary investigation. The medical evidence is reflective of the fact that there were two assailants, one with a firearm and the other with a blunt weapon as injuries Nos.4 and 5 were caused by a blunt weapon. In the F.I.R. Jalal has been shown to be empty handed and in this manner the medical evidence does not fully support the prosecution case. The motive for the commission of this crime is also not such that Ghafoor gave Danda blows to the son of the appellant and having regard the natural course of events, Nawab should have killed Ghafoor and not Noor Samand who had just assisted Ghafoor in the fight which ensued between Ghafoor and Noor Hassan. The story of recovery of pistol has been disbelieved. Considering all these facts we have entertained lurking doubts in our minds regarding the complicity of the appellant in this crime. We, therefore, extend benefit of doubt to the appellant and after the acceptance of his appeal, set aside the conviction and sentence under sections 302 and 352, P.P.C. The death sentence is not confirmed and the reference is answered accordingly. The appellant shall be set at liberty forthwith if not required to be detained in any other case.