This is au appeal by Ghulam Hassan son of Bahawal Khan, and Karam Dad son of Muhammad Hayat, Pathans of Chak No. 33/10-R in Tehsil Khanewal of District Multan, who have been convicted by the learned Additional Sessions Judge, Multan, by many of his judgment arid order, dated the 2nd of July 1969, under section 302/34, P. P. C. For the murder of Muhammad Ramzan son of Muhammad Usman of the same village and have been sentenced to transportation for life each.
2. The facts of the prosecution case are that Muhammad Ramzan deceased had illicit relations with Mst. Taj Bibi, sister of Ghulam Hassan appellant. A few days prior to the occurrence, the said Mst. Taj Bibi (of her own accord) came to the house of the deceased but was returned to her relations. However, the matter brought a bad game to the family duo to which the appellants nourished a grudge against the deceased. Consequently, on the night between the 19th and 20th of September 1967, when the deceased eras sleeping ka his house with his brothers Mohammad Afzal (P. W. 14), Muhammad Hanif (P. W. 15) and their mother Mst. Nur Bhari, the witnesses hereinbefore mentioned heard the noise of a fire-arms due to which they woke up. They saw that Ghulam Hassan, appellant had opened a fire on Muhammad Ramzan deceased which hit him on the left side. Thesecond fire was opened by Karam Dad appellant who was standing close to the deceased. The assailants were identified by the aforesaid witnesses. Muhammad Ramzan died on the spot. After doing this job, the assailants ran away.
3. Leaving the dead body of the deceased with the other relations, who had assembled on the spot after the occurrence, Muhammad Afzal (P. W. 14) went to Police Station Khanewal where he lodged F. I. R. (Exh. P. A.) on the 20th of September 1967, at 7 a.m. Which was recorded by Muhammad Akram Khan, Sub-Inspector (P. W. 18). The Sub-inspector reach the spot and prepared the injury- statement and inquest report of the deceased. He took his dead body into custody and sent it to the mortuary for post---mortem examination. He arrested the accused on the 22nd of September 1967. Ghulam Hagan appellant is alleged to have produced a single-barrelled gun (Exh. P. 1) along with four cartridges (Exhs. P. 2 to P. 5) which were taken into possession vide recovery memo. Exh. P.
C. The witnesses for recovery were Sultan Muqarrab (P. W. 3), Malik Muhammad (P. W. 4) and Muhammad Akram Khan, S. I. (P. W. 18). There was another witness Khadim Haider wino, however, was not produced. Karam Dad appellant is alleged to have produced a single-barrelled gun (Exh.
P. 6) and three cartridges (Exh. P. 7/ 1 -3) from his residential Kotha on the 30 of September 1967, which were taken into possession vide recovery memo. Bib. P. D. Witnesses of recovery are Muhammad Shafi (P. W. 5), Muhammad (P. W. 6) and Muhammad Akram Khan, S. I. (P. W: I8). These guns and cartridges were not sent to any ballistic expert and from that point of view there is nothing to connect them with the crime involved in this case. These recoveries, it will thus appear, are not of much evidentiary value. After conducting the necessary investigation, the pro--secution submitted a challan against the appellants and on trial they were convicted and sentenced, as hereinbefore mentioned.
4. A crucial point, which has come in t he fore-front in this case, is as to whether the deceased died as a result of assault by fire arms or by any other weapon. The prosecution produced five eye- witnesses in the form of Mst. Ghulam Sakina (P. W. 12) and Mst. Waziran (P. W. 13), sisters of the deceased, Muhammad Afzal (P. W. 14) and Muhammad Hanif (P. W 15), brothers of the deceased, and Mst. Nur Bhari P. W., mother of the deceased. She appeared as a witness before the committing Magistrate but died by the time the trial in the Sessions Court commenced and therefore her statement in the committing Court was transferred to the Sessions' File under section 33 of the Evidence Act. The prosecution also produced Sardar Muhammad (P. W. 8), a Wajtakkar witness, who deposed that on the night of occurrence he was sleeping on a Tharra in front of his Baithak, twenty to twenty-two paces away from the house of Muhammad Afzal (P. W. 14). He heard a gun report at about midnight and was awakened, He hoard two more successive gun-reports, He went towards the house of Muhammad Afzal and saw the appellants corning out of that house with guns.
5. In this case there were performed two post-mortem examinations on the body of the deceased.
The first post-mortem examination was conducted by Dr. Muhammad Bashir-ud-Din (G. W. 1) on the 21st of September 1967. The said doctor made the following statement is Court "The body was of healthy man covered by a shirt, bunian and a chador. A Taveez from his left arm was removed. Right eye was closed. Left eye was macerated. Left side of the nose was macerated.
Brain had fallen out of skull and skull was fractured an innumerable pieces. There were following injuries on the dead body:--
(1) A macerated wound on the left side of nose with maceration of nasal bone. It extended to skull cavity. Skull was fractured in innumer--able pieces and was opened on its left half. Brain left half was fallen out and right half was present in the right half of skull in macerated condition. Left eye was hanging in the skull cavity with a portion of akin. Scalp was macerated. Pericardium was normal and heart was empty. Stomach was normal and contained semi-digested food material in form of Chapatis etc. Small intestines were normal and contained soft stools. Large intestines were normal and contained normal hard stools. Bladder was normal and contained four ounces of urine.
All other organs were normal.
Death in my opinion was from shock and haemorrhage from the head injury. The injuries were sufficient in the ordinary course of nature to cause death. Injuries were dangerous and duration was about 37 bouts. Injury was caused by a heavy sharp weapon and heavy blunt weapon in the form of iron biz Time between injury and death was immediate and between death and post- mortem was 37 hours. At the arid of post-mortem examination a copy of the P. M. Report along withth police papers and clothes of the deceased Kameez one, Bunian one, cheddar one, Taveez one and six Chharras and one more pro--duced by the complainant and according to his statement these were lying on the charpoy near the head were handed over to Police Constable Faqir Muhammad.
One cork was also handed over to the Constable. This code was also produced before me by the complainant alongwith the other items mentioned above. Copy of my report D. D. Is correct to the original report.
XXn:-by prosecution: It is incorrect to suggest that I had given the P. M. Report U. D. Chew honestly after having been approached by the accused. It is correct that on this report the police registered a case under section 201 against we but that was to harass me. No departmental action had been taken against me in this respect.
XXn:-by accused: I have been discharged in the case under section 201, P. P. C. The dead body had arrived about half an hour earlier than my P. M. Examination. The note in vernacular at the end of P. M. Report was recorded by me while handing over various articles to the Constable Faqir Muhammad whose signatures were as well obtained. D. D. Was the copy given by me to the accused. At the time of performing, P. M. Examination I knew that the complainant and. The police alleged that the deceased had been killed by gunshot and there might be pellets in or around the wound. I asked the Director to thoroughly search for pellets but he failed to find any. After that not relying upon him alone I myself thoroughly scoured the wound and searched every where for pellets but could not find any. I had made teats extensive search for pellets in view of the observation, contained in Exh.
P. K. The injury statement. . I did not observe any burning or scorching or charring or tattooing of the skin of the deceased in the area of the injury on his person. They were no singeing of the hair. I did see a tuft of hair of the deceased lying on the cot on which the dead body had been carried to the hospital. I examined these hair also and found no sign of any singeing. By word "macerated" I mean badly lacerated. The occipital bone as well as the right half of the skull of the deceased had not been fractured and they were intact."
6. The second post-mortem examination was conducted by Dr, M.S. Faridi on the 25th of September 1967, after exhuming the body of, the deceased from grave. This doctor made the following statement:--"There was a lacerated wound on the left side of the head and face measuring about 8' as measured on the stitch-line. On opening the stitches it was found that pieces of frontal bone left parietal, and left temporal, bones were missing the scalp flap had been stitched under tension indicating that portion of the scalp had shattered away. Left upper jaw bone, left nazal bone, left zygomadic bone, left clacrimal bone, ethmoid bone, sphenoid bone, base of skull anterior and middle fossae, left frontal bone, left temporal bone, and left parietal lone, were shattered into pieces. Innumerable small bone pieces were lying is the skull cavity mixed with putrefied brain. As well as under the scalp had been recovered from tinder scalp flap and in the scalp which were embedded with. Nine piece of metal apparently former pellets had been recovered. A scalp was petrified and the hair were loosened. The skull bones, which were shattered showed irregular margins all over. Brain and membrane were putrefied. Heart was putrefied and was empty. The abdomen had brust opened at the stitch line and putrefied Stomach was found opened, containing some food material and was putrefied Small intestines were putrefied and contained some digested food. The urinal bladder was putrefied and was open and empty. All the other internal organs were putrefied.
Death was caused due to injury to the brain. In my opinion, the injury was caused by gunshot, which was sufficient, to cause in the ordinary course of nature. Probable time between injury and death was instantaneous and that between death and post-mortem within 7 days. Wine pieces of deformed pellets were sealed in the bottle. Dead body titter the post-mortem and a copy ref the post-mortem report was handed over to the police. Exh. P. M. Is the correct copy of the post- mortem examination report which is in any hand and signed by rue. Exh. P. M./1 is the diagram of the injuries on the person of Muhammad Ramzan deceased."
7. At this stage it is pertinent to mention that Dr: Bashir-ud-Din was proceeded against under section 201 of the Pakistan Penal Code for having given a false post-mortem report. It is a common ground that he was discharged in t sat cease, I have in the fact of the above two reports of the doctor to find as to whether the prosecution case with regard to an assault to an assault stands established on the record beyond airy reasonable doubt or not. I have noticed that the pieces of metal which Dr. Faridi allegedly recovered from underneath the frontal portion of the scalp of the deceased were not sent to any ballistic expert for the purpose of proving that they were part of pellets or of some other substance. There is nothing on the record to show that these pieces of metal were blood-stained. Some pellets at the time of the first post-mortem examination were produced by the complainant partly before the first doctor in the hospital, indicating that they had found them from the side of the deceased (pan the cot) but no mention of this fact wag made either in the first information report or the inquest report in which art Investigating Officer is required by law tai indicate the thing which be found near the dead body, From the medical evidence of both the doctors, it is clear that there was no burning, charring or black--ening of the akin. At this stage it is significant to mention that according to Muhammad Afzal (P. W. 14) and Muhammad Hanif (P. W. 15) the fire was made from a very close range when the nosal was at a distance of five or six inches from the victim (the actual distance in the statements of these witnesses was given as four fingers). If the fire had been made front such u close range there is no reason as to why the skin should trot have been charred, blackened or burnt. There were no signs of any pellet holes on arty of the clothes of the deceased or his beddings etc. When C. W. 1 Dr. Muhammad Bashir-ud-Din appeared as a Court witness the prosecution did not cross-examine him with regard to the merits of his testimony and just left the matter by patting one single question as to whether he was challaned under section 201, P. P. C. For giving a false report The doctor clarified this matter by saying that be was discharged from that ease. The said doctor had appeared as a witness in the committing Court but was not got declared hose by the prosecution at this stage. The complainant party lit the tithe when the first post-mortem examination was conducted also produced a cork before that doctor which he handed over the police constable but strangely enough neither that cork nor some pellets which the complainants of their own produced before the doctor were blood-stained where was no wound of entry of pellets. The injury on the person of the deceased was eight inches wide but there were no pellet marks tear oil around that injury. According to Dr. Faridi tie weapon was discharged at the face of the deceased either in actual contact with the skin or within few inches. This deposition of the witness cannot be accepted. If the fire was made by placing the weapon in actual contact with the skin then the wad, the cork, the whole of the powder etc. All should have been in the body of the deceased (because there is no exit wound), but this is not the position. Similarly, it the weapon was in contact with the body of the deceased then they would have been a corresponding rush of blood into the Crime weapon itself which again is not the position. Second alterna--tive suggested by Dr. Faridi, that the fire was made from a distance of few inches, is equally not established on the record because as already mentioned there is no charring burning or blackening of the skin. In the first hypothesis the wound itself would have burnt and in the second hypothesis the outer skin would have been burnt.
None of these things, however, existed on the body of the deceased. Doctor Faridi was of the view that the pellets had travelled upwards and backwards in the process and smashed the various bones, but he was not in a position to state as to whether the pellets deflected or bounded and from which bone. He also was not clear as from which side of the scalp he had recovered the deformed pellets. He also conceded that in his post-mortem examination first he had omitted to mention the condition of the left eye of the deceased. For all these reasons, there has crept up a reasonable doubt in my mind on the point whether the deceased was assaulted by fire-arms or by some heavy sharp weapon in the form of some iron Batta etc., as deposed to by Dr. Muhammad Bashir---ud-Din. It is obvious that the benefit of this doubt must be given to the accused and not the prosecution. At this stage, it may be mentioned that though the prosecution produced five eye- witnesses and one Wajtakkar witness but out of them the statements of P. W. 12 Ghulam Sakina, P.
W. 13 Mst. Waziran and P. W. 8 Sardar Muhammad can be rejected on the short ground that they were not mentioned in the first information report Mst. Ghulam Sakina and Mst. Waziran were the sisters of the deceased and were allegedly sleeping close near his cot. Sardar Muhammad was the first man who bad seen the accused corning out of the room of the deceased and if all these persons had actually been present at that time there is no justification why their names should have been omitted in the first informa--petition report. The evidence of the remaining alleged eye- witnesses does not stand corroborated from any other material on the record and rather the medical evidence creates reasonable doubt in their testimony and in Of prosecution case as a whole.
8. The recoveries, as already mentioned are of not of any evidentiary value inasmuch as the weapons etc, allegedly recovered have not been connected with the crime involved in this case or with the accused.
9. The upshot of the above discussion is that the case not being free from reasonable doubt the appeal is accepted, the convictions and sentence of the appellants are set aside. They should be released forthwith if not required in any other case in accordance with law.
10. "Before parting with this judgment must say that the strictures which the learned Additional Sessions Judge has passed against Dr. Muhammad Bashir-ud-Din cannot be maintained on the present record and should, therefore, be considered as having been expunged.