ASLAM RIAZ HUSSAIN, J.- Muhammad Iqbal aged 21 years ad his father Bashir Ahmad aged 65 years were tried by the learned Sessions Judge, Layallpur, for causing the death of Muti-ur-Rasool.
They were found guilty of an, offence under section 302/14, P. P. C. The learned trial Judge sentenced each of them to death. They have filed a joint appeal against their conviction and sentences. The matter is also before us for confirmation of the death sentence awarded to them.
We propose to dispose of the appeal as well as the Murder Reference by a single judgment.
2. The occurrence took place at degarwela on 24-11-1969 in Chak No. 136/R. B., Police Station Chap Jhumra, District Layallpur. The First Information Report Exh. P. A was lodged by Rahim Bakhsh P. W. 8 on the same day at 5-30 p.m. At Police Station Chak Jhumra situated at a distance of one mile from the place of occurrence. It was recorded by A.I Muhammad A. S. I. P. W. 12.
3. The motive for the incident is stated to be that Mst. Rasool Bibi, a real sister of Bashir Ahmad appellant were married to Rahim Bakhsh P. W. E, the first informant. A. Daughter, Mst. Zubeda was barn out of the wedlock and Mist. Rasool Bibi promised to give her hand in marriage to Muhammad Iqbal appellant, the son of her real brother Bashir Ahmad appellant. Mat. Rasool alibi however died about 10/12 years prior to the incident, whereafter Rahim Bakhsh did rot abide by the promise made by his wife and married Mst. Zubeda to Ishfaq, the real brother of Muti-ur---Rasool, deceased. The immediate motive is stated tie be that at peshiwela and the day of occurrence, Muti-ur-Rasool seas going to his dera. Muhammad Iqbal appellant was also going, in the same direction, while going to his yawn dera. When he passed the deceased he "coughed in a taunting manner." In reply, Muti-ur-Rasool (deceased) exposed his genitals to Muhammad Iqbal appellant, with a view to insult him and signify his contempt. The latter did feel insulted and threatened that he would teach Muti-ur-Rasool a lesson for the same. This incident was witnessed by Lal Din P. W. 7, who was also passing that way. On reaching the dera Muti-ur-Rasool (deceased) narrated this incident tea Rahim Bakhsh P. W. 8 and Muhammad Hussain P. W. 9, who were present at the Dera.
Later on, at about degarwela, Muti---ur-Rasool went out to make a round of the watercourse irrigating leis fields. He had only travelled a short distance and seas going can then village thorough fare when Muhammad lqbal and his father Bashir Ahmad, appel--lants, came from in front. Muhammad Iqbal was armed with a .12 bore gun while Bashir Ahmad was empty-handed.
Bashir Ahmad appellant raised a lalkara, telling Muhammad Iqbal appellant not to spare Muti-ur- Rasool. On hearing the noise Rahim Bakhsh acid Muhammad Hussain P. Ws. Also ran towards the spot. So did Allah Bakhsh. W. 10, who was going on the same road at a short distance from the deceased, towards the North. Within the sight of the above-named P. Ws. Muhammad Iqbal appellant fired at Muti-ur-Rasool, which bit him on the front side of his abdomen. The latter fell down. Muhammad Iqbal appellant ran towards the village with his gun. Muhammad Hussain P. W.
9 chased them anal caught hold of Bashir Ahmad appellant from his testicles, but the latter managed to get himself released and ran away. The aforementioned h. Ws. Then placed Muti--- ur-Rasool on a cot and took him in an injured condition to the hospital, at Chak Jhumra. When they reached near the hospital, Mini-ur-Rasool succumbed to his injuries. Rahim Bakhsh P. W. 8 went to the police station and lodged the F. I. R. After recording the same A.I Muhammad A. S. I P. W. 12, went to the hospital a prepared the injury statement acid the inquest report, relating to the dead beady acid sent it for post-mortem examination. He then left for the spot. (i.e. Chak No. 186-R B) where he recovery the statements of the eye-witnesses. He spent the night in the Chak. In the morning he inspected the spot; collected some blood-stained earth from there vide memo. Exh. P. B. He arrested both the appellant on the 25th November 1969, and sent Bashir Ahmad appellant for medical examination on the same day. Dr. Muhammad Asghar, P. W. 1, examined Bashir Ahmad appellant and found the following injuries on his person:- "1. A small abrasion superficial 1/10' x 1/10 each on the left side of scrotum, in an area of 2" x 1-- with slight swelling over it. The injury was simple caused by blunt weapon within 24 hours Exh. P. H. Is the correct carbon copy of my medico-legal report. Exh. P. H./1 is the sketch of injury. Both bear my signature."
3. During the investigation, licensed 12 bore gun (P. 1) belonging to Bashir Ahmad appellant was recovered with three live cartridges, but its recovery is of no use in the case as no empty was recovered from the spot and the gun could not therefore be connected with the offence. The accused were ultimately challaned arid then committed to stand their trial before the Court of Session.
4. The prosecution produced 2 witnesses in support of its case, which rests mainly on (i) the evidence of motive, (ii) the ocular evidence and (iii) the medical evidence. As already mentioned two motives have been stated in the F. I. R. The first is that Rahim Bakhsh P. W. 8 went back on the promise to give the hand of his daughter Mst. Zubeda in marriage to Muhammad Iqbal appellant.
Tire second (and the immediate) motive is stated to be that Muhammad lqbal came across Muti- ur-Rasool deceased while the latter was proceeding to his dera and coughed ins a taunting manner, were upon the deceased exposed his genitals to Muhammad Iqbal appellant, thus insulting him. Muhammad lqbal appellant went away threatening that lie would teach him a lesson for this insult. Lai Din P. W. 7 is said to have seen this occurrence. Muti-ur-Rasool is said to have informed Rahim Bakhsh P. W. 8 and Muhammad Hussain P. W,
9. Lal Din P. W. 7 has made a significant improvement in the story about the above-mentioned incident in his statement at the trial and has stated that when Mud-ur-Rasool exposed leis male organ to Muhammad lqbal appellant, the latter attacked him and that he (Lai Din P. W.) intervened and separated them. This improvement is obviously meant to strengthen the motive because the story, as stated in the F. I. R.
Can hardly be said to be serious enough to have induced Muhammad lqbal appellant and his father Bashir Ahmad (appellant), he have come armed with a gun, with the specific purpose of doing away with Muti-ur-Rasool. In the first place the grouse or hostility of the appellant with regard to the marriage of Mo. Zubeda would ordinarily have been directed towards her father Rahim Bakhsh P. W. 8 or towards Ishfaq, to whom she was married, and riot to his brother Muti-ur- Rasool. Secondly there was hardly any occasion for Muhammad Iqbal appellant tai have coughed at the deceased in a taunting mariner because it is not understand-- able as to what he had to taunt him about, specially whets it was the deceased's party which had succeeded in the competition for the hand of Mst. Zubeda party is obvious that it was for this reason that physical grappl--ing between Muti-ur-Rasool and Muhammad Iqbal appellant had to be introduced i.e. To make the matter too serious enough to constitute a motive for the appellants to resort to a murderous assault. Even Rahim Bakhsh P. W. Who lodged the F. I. R. Has not mentioned in it that Muti-ur-Rasool lead told hire about any "grappling" with Muhammad lqbal appellant, but at the trial he too, has introduced this improvement. We are of the view that the motive, as alleged in the F. I. R. Is not sufficient for inducing the appellant tar commit the cringe in question and that even the improved version put forward at the trial is not sufficient for that purpose. Moreover the improvement vas obviously an afterthought. The foal motive appears to have been quite different arid was probably not known tie the P. Ws, We, therefore, rile the motive stated at the trial out of consideration as false or at least incorrect.
5. That ocular evidence consists of the statements of Rahim Bakhsh P. W. 8, Muhammad Hussain P.
W. 9 and Allah Rakha P. W.
10. They are related to the deceased as follows:-- Rahim Bakhsh P. W. 8 is the brother of Piranditta, the grand-father of the deceased Muhammad Hussain P. W. 9 is the uncle of the deceased and Allah Rakha a collateral of the deceased. Allah Rakha---s relationship as given by Rahim Bakhsh P. W. 8, is as follows:-- "Allah Rakha P. W. Is son of Mehr and paternal grand son of Jawaya. That Jawaya was my father's brother."
According to the prosecution case the incident admittedly took place on the village road which is flanked by houses on eastern side which is evident from a look on the site-plan (Exh. P. E./1) and the place of occurrence is situated right in front of a Carpet Factory belonging to one Ghulam Nabi, next to the house of one Mistri Abdul Rashid yet, it is significant that no inde--pendent person; except the three relatives of the deceased, have been cited as witnesses in the case. In fact the position taken up by the prosecution appears to be that no one except three relatives of the deceased happened to reach the spot and see the occurrence, which took place in broad daylight on a public path.
The next question to be considered is whether the three related eye-witnesses are also inimical to the accused. In this connection it may be mentioned although the appellants have taken up the position that they have been involved in the cage clue to enmity, yet the learned defence counsel has failed to bring out any specific enmity between the parties, during the cross-examination of said eye-witnesses, except that Muhammad Hussain P. W. 9 was asked (and he admitted) during the cross-examination that they (the eye-witnesses) were not on speaking terms with the appellants since a long time. It may therefore be said with some justification that enmity between: the witnesses and the appellants has not been fully established and they (the eye-witnesses), cannot therefore be termed as "interested witnesses", in the technical sense of the words. It is also correct that all three of these have supported the prosecution and it can therefore be urged that since they are disinterested witnesses their testimony can be believed without any independent corroboration. However, on going through the testimony of (these witnesses, we are not impressed with regard to their veracity or truthfulness.
Even if thy witnesses arc; ostensibly unconnected with the deceased, it is not necessary that they are witnesses of truth, In fart the acid teat of the veracity of a witness is the intrinsic worth of the statement made by him. It was held by a Division Bench of the High Court of West Pakistan, in Lakhmir v. State (PLD 1968 Quetta 7), that:- "A witness who apparently is wholly disinterested and independent may not be possessed of honest moral scruples to deter him from polling a lie. "Whosoever the witness and whatever his attributes, in the final analysis, the best test of his statement is its own inherent worth, in point of consistency, straightforwardness as tested against the physical possibilities and the circumstances surrounding the event to which his testimony relates."
The principle governing the appreciation of evidence of ostensibly disinterest--ed witnesses also case under consideration, by the Supreme Court of Pakistan, in Bashir Ahmad v. Muhammad Azam and another (PLD 1969 SC 469) and it was observed by their Lordships inter alia, that :-- "But even if they are not relation witnesses, it does not mean that they are witnesses of truth.
Ultimately, the acid test of the veracity of a witness is the inherent merit of his own statement."
As already mentioned, the fact that no independent witness has been pro--duced in support of the prosecution case, by itself casts a doubt in the prosecution case. Moreover the story told by them does not ring true. In the first place the motive for the offence does not appear to be very con-- vincing, for the reason already stated above. It was Ishfaq who had married Mst. Zubeda and the appellants could not have had any grouse on this score, against Muti-ur-Rasool who was a young boy aged only 18/19 years. Moreover, since the deceased party had succeeded in securing the hand of Mst. Zubeda in marriage, there was hardly any occasion for Muhammad Iqbal appellant to taunt Muti-ur-Rasool. No doubt he may have felt insulted by the conduct of the latter in exposing his genitals to him but this by itself is not sufficient reason for the two appellants, out of whom Bashir Ahmed appellant (the father of Muhammad lqbal appellant), is an old man of 65 years to come with gun and shoot down the deceased. If as asserted by the eye-witnesses; Muhammad Iqbal appellant had brought out a gun to kill the deceased there was no reason for his father Bashir Ahmad to hay; joined him, and actually incite him to shoot at the deceased. Moreover if they had come out for the specific purpose of shooting down Muti-ur-Rasool there eves hardly any occasion for Bashir Ahmad to have raised lalkara twig after sighting the deceased, for this would only have helped to attract the prosecution witnesses to the spot. This assertion therefore appears to hr no more than a conviction. Last but not the least, the testimony of these witnesses is contradicted by the medical evidence. A solitary shot is said to have been fired by Muhammad- Iqbal at the deceased. The injury caused by ithas been described by Dr. Muhammad Asghar as follows:- '(1) A gunshot wound 1-- ' x -- abdomen deep on the left iliac fossa of below umbilicus and half inch below anterior superior iliac spine. The murders were blackened and scorched and inverted.
The chaddar bad corresponding puncture and blackening. The shirt and bunyan had blackening over the corresponding point."
It will be noticed that according to the doctor the margins of injury were not only blackened but were also scorched. Three corks (i.e. Wads) were also removed from the iliac fossa during the post- mortem examination. It is well established that scorching and blackening is caused, when a shot is fired from a distance of 4 feet or less and scorching is caused only when the shot is fired from a distance of up to six inches. Reference in this connec--petition may be made to Modi's Medical Jurisprudence and Ballistic Firearms and Jurisprudence by R. L. Gupta, 1964 Edition. The last mentioned book was cited by the learned State Counsel on behalf of the prosecution. On page 156 of that book, the following opinion has been expressed with regard to the distance from which scorching can be caused:- ' . . . . . But for all practical purposes the extreme limit of the scorching range is so small that reasonably approximate estimation of the range is good enough., with a service ride scorching tray occur up to 6 aches : and with a revolver or pistol up to 2 to 3 inches. Sax it ca. Be assumed with absolute correctness that the presence of scorching is definite proof that the shot was fired from a range of but a very few inches.--- The fact that the shot was fired from a very close range is also supported by the dimension of the injury, i.e. 1-- x -- ". The learned State Counsel argued that the pellet of shot, tired from a .12 bore gun, do not expand at all up to a distance of three fact and therefore the length of the injury in the present case, (1.e. 1--), would shorn that the shot had been fired from a considerable distance. But Mr. Gupta's Book cited by the learned State Counsel himself expresses a different view at page 162 which may be repro--duced for the facility ref reference.
"It may be assumed for all practical purposes that if the diameter of the wound is an inch or less than the distance of the shot was 18 inches or tinder, irrespective of the gauge of the shot-gun or the degree of choke. Up to 2 feet there is very little difference in the Spread between guns of various gauges and different chokes, the bole at this distance being slightly over an inch in diameter. At 3 feet the hole is nearly 11" inches in diameter."
This view is also borne out by Modi's Medical Jurisprudence. But according to the eye-witnesses, the distance between Muhammad Iqbal appellant and the deceased at the time of firing was between 12/15 feet. According to sate-plan Exh. P. E./1 the distance was 1I feet. Even if an allowance of three feet is made for the length of the gun's barrel, the remaining distance would still be too much for causing any `blackening' or `scorching' of the wound. It is therefore evident from the description of the injury that the shot was fired at Muti-ur-Rasool deceased from a very close range. It is well established that if oral evidence is contradicted by the medical evidence, the latter is given preference. Refer Ajiwan Shah v. State (PLD 1964 SC 633), Khurdo v. State (PLD 1963 Kar.
92), Thobu v. State (PLD 1963 SC 40) and Muhammad Iqbal v. State (1969 P Cr. L J 187). It is quite possible that the incident wag in fact seen by some persons, as it took place on a public path ire the village (which is about 40 feet wide according to the site-plan) but it is evident that none of these persons has come forward to depose about it. It is also possible that it was Muhammad Iqbal who fired it the deceased but again it is evident from what has been said above that the three eye- produced by the prosecution had not seen the occurrence and that had not taken place in the manner described by their. The learned State Counsel argued that rustics cannot give distances accurately and therefore when they say the distance between Muhammad Iqbal and the deceased wall 11 feet, it may as well has been about 4/5 feet. If this argument was to be accepted the result would be that one would be giving the benefit of doubt to the prosecution rather than to the accused, which is contrary to well established principles of Criminal Jurisprudence and of appreciation of evidence, for, as observed by the Federal Court of Pakistan in Adalat v. Crown (PLD 1956 FC 171), "one of the fundamental principles of the criminal law as at present administered, is that the benefit of doubt arising on any material point mist be given to the accused person."
6. It was contended by the learned State Counsel that the injury found on the scrotum of Bashir Ahmad is a circumstance which goes to corroborate the prosecution version. In this connection it may be mentioned that Bashir Ahmad is said to have been arrested on the 25th of November 1969, and was got medically examined for the said injury on the same day at about 10 a.m. It was however pointed out by the learned defence counsel that Malik A.I Muhammad A. S.1. (P. W. 12) who had arrested Bashir Ahmad appellant, admitted during his cross-examination that he had made an application to the Ilaqa Magistrate for obtaining the remand of the two appellants and that the date of arrest given in it is 24-11-1969. He has tried to explain that he gave this date inadvertently.
This `mistake' however does case a serious doubt on the part of the prosecution version and, as already observed, the benefit of any doubt arising in a criminal case most go to the accused. It may be mentioned that according to the defence, Bashir Ahmad appellant was arrested on 24-11- 1969 and had received the injuries in question, at the hand of the Investigating officer, who had tortured him and hard, subsequently, in order to save himself from blame, gist it mentioned in the F.
I. R. That Muhammad Hussain P. W. Had caught hold of Bashir Ahmad appellant from his testicles. In the first place the story that Bashir Ahmed appellant was present at the place of occurrence, itself appears to be doubtful because he had neither any immediate motive for the offence nor could he contribute anything towards the commission thereof and, as such, his presence was redundant.
Moreover, if Muhammad Hussain had run after Bashir Ahmad appellant and caught him, he would have caught him in a japhha rather than catching hold of his testicles. Besides, if he had in fact caught him by his testicles, Bashir Ahmad could never got himself released for it is well known that the said part of the male anatomy is extremely delicate and even the slightest pressure on it would render one completely helpless.
7. As a result of the above discussion we feel that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. Consequently we accept the appeal and set aside the impugned judgment. The appellants should be set at liberty forthwith unless they are wanted in some other case. The sentence of death imposed on the appellants is not confirmed.
This disposes of the appeal as well as the Murder Reference.