' MIAN ALLAH NAWAZ, J.---On 17-4-1986 at about 10-30 a.m. At Pul Adda Mujahid, Ali Muhammad complainant, P.W.9 reported to Muhammad Raza A.S.I. In respect of commission of murder of his son Manzoor Ahmad. It was reported; that the complainant was cultivator; that the wife of his son Manzoor Ahmad was ailing and was under treatment at Multan; that the complainant aiongwith Muhammad Ramzan and Manzoor Ahmad was going towards Multan on a road on foot. They were accompanied by Shah Muhammad also. At about 10-30 a.m. They reached near Bhaini of Noor Akbar in Chak No,1-4/M.P.R., Noor Akbar and Ahmad Fayyaz came out of their Bhaini. Ahmad Fayyaz shouted that Manzoor had come today and he be done away with and asked Noor Akbar to fetch his rifle. On which Noor Akbar went towards his house and brought the rifle. On seeing the rifle, they ran towards their houses but Manzoor Ahmad lagged behind on account of some trouble in his foot. Noor Akbar fired successively at Manzoor Ahmad, who fell down. On their hue and cry, the residents of the village came to the scene of occurrence. Noor Akbar and Ahmad Fayyaz went to their Bhaini. When they came near Manzoor Ahmad, they saw that he had succumbed to injuries. It was reported that the motive of occurrence was that Noor Akbar, Ahmad Fayyaz and Manzoor Ahmad had a fight one year prior to this occurrence and in this light Noor Akbar and Ahmad Fayyaz were injured: that Noor Akbar and Ahmad Fayyaz had killed Manzoor Ahmad in order to take revenge of aforesaid occurrence.
2. Muhammad Raza, A.S.I., P.W.11 recorded the statement of complainant which was read over to him and in token of its correctness, he signed the same.
' This F.I.R. Bearing Exh. PA./1 was despatched to the Police Station through Aitbar Khan Constable for formal registration. Muhammad Raza, A.S.I. Went to the venue of occurrence, prepared the inspection note, inquest report (Exh. PC/3), injury statement of deceased as Exh.PD/1, despatched the dead body of Manzoor Ahmad deceased to mortuary for the post-mortem examination. He collected the blood-stained earth on 17-4-1986, made it in a sealed parcel vide recovery memo.
Exh.PG. He also got prepared site plan by the Patwari as Exhs.PE, PE/1 and PE/2, despatched the parcels of blood-stained earth to the Moharrar or the Police Station. Muhammad Zulfiqar, S.I., Special Branch, Multan P.W. 8 effected the arrest of both the accused i.e, Ahmad Fayyaz and Noor Akbar on 22-4-1986. Ahmad Fayyaz accused produced rifle Exh.P.5 and three empty cartridges Exh.P.6/1-3 which were taken into possession vide recovery memo. Exh.PH. He prepared the sketch of rifle Exh.P5 which is Exh.P4/1. The recovery memo. Of rifle Exh.P.5 and empty cartridges Exh.PH.
Were made in the hand of Muhammad Raza, A.S.I. Ahmad Fayyaz accused produced live cartridges numbering 20, Exh.P.8/1-20 and live cartridges Exh.P.7/1-15 and licence of rifle Exh.P.9 which were taken in possession by Muhammad Zulfiqar vide recovery memo. Exh.P.I, which was also written by Muhammad Raza, A.S.I. And signed by Muhammad Zulfiqar. He recorded the statement of P.Ws. Pertaining to recovery. The drawings of sketch Exh.PH/1 were also in the hand of Muhammad Zulfiqar but the writing was made by the A.S.I.
3. After the investigation, the accused were sent up to face trial under section 302/34, P.P.C. The accused pleaded not guilty. -
4. The prosecution examined as many as 11 witnesses. In brief the prosecution evidence comprised of ocular evidence, circumstantial evidence and the evidence of motive. The ocular evidence was furnished by P.W.9, Ali Muhammad complainant, P.W.10 Shah Muhammad and P.W.3, Khalil Ahmad P.W.10. Shah Muhammad gave, the testimony with respect to motive. The circumstantial evidence comprised of the evidence of Dr. Muhammad Salim, P.W.4 who conducted the post-mortem examination, P.W.5, Nazar Muhammad Patwari, who prepared the site plan. P.W.1, Ahmad Bakhsh, Moharrar, Police Station, Dunyapur who prepared formal F.I.R., P.W.2, Noor Muhammad, who identified the dead body at the time of performance of autopsy, P.W.7, Niaz Muhammad and P.W.8, Muhammad Zulfiqar are the recovery witnesses. The affirmative report of the Chemical Examiner and Forensic Expert were tendered into evidence.
5. On 18-4-1986 at about 7-30 a.m. The autopsy of the deceased was performed by Dr. Muhammad Salim who on external examination of the body found following injuries:-
(1) Wound of 'entry 2 c.m. x 1 c.m. Going deep on the left side of the abdomen. The margins were black and inverted. Its shape was oval.
(2) Wound exit 3 c.m. x 2-1/4 c.m. On the back of the abdomen (Lumberg region. Margins were lacerated everted. Corresponding holes were present on the shirt.
(3) Wound of entry 2 c.m. x 1 cm. Going deep on the outer side of the right side upper part, margins black and inverted.
(4) Wound of exit 5-1/2 c.m. x 2 c.m. On the inner side of the right thigh, corresponding holes were present on the Chadder.
(5) Wound of entry 1-1/2 c.m. x 1 c.m. Going deep on the back of the left thigh on its middle part.
Margins were black and invert.
(6) Wound of exit 2-1/2 c.m. x 1 c.m. On the inner and upper part of the left thigh. Margins were everted, corresponding holes were present on the Chadder.
' Note:-- The bullet enter injury No,5 passed medially upward in the left thigh came out at the inner side again. Entered in the skin of the ingunal region of the left side and crossed towards the right side, thus caused the wounds on the left and right ingunal region, causing injury Nos.7 and 8 which is as under:--
(7) Lacerated contused wound 2-1/2 c.m. x 1 c.m. On the left ingunal region, wound was continued with injury No, 8 on the outer side.
(8) Lacerated contused wound 6 c.m. x 2-1/2 c.m. On the right ingunal region. Wound was continuous with injury No,7.
All the injuries were ante-mortem, caused with lire-arm. All the injuries were grievous. Duration was within 21 hours. On internal examination he found:-- "All the contents of the coranium, thorax and abdomen were healthy and normal except that big vessel of the abdomen were inujured, Paricardium, small intestines and left kidney were found injured. Stomach contained digested food. Large and small intestines empty.
' On opening the abdomen, it was found that the bullet injury No,1 passed downward and backward, in the way injured peritoneum misentry. Small and large intestines, left kidney passed out.
' In his opinion, the cause of death was shock and haemorrhage. All the injuries collectively and individually were sufficient to cause death in the ordinary course of nature. The death was immediate and the post-mortem was conducted within 21 hours of the death.
6. At the close of prosecution case, the statements of the accused were recorded under section 342, Cr.P.C. Where they pleaded not guilty and took up the stand that the prosecution version was false; that it was an un witnessed murder; that the case was framed at the behest of Abdul Ghani and his son Muhammad Ashraf who were resident of Chak No,1-4/MPR and deadly inimical to them; that Muhammad Raja, A.S.I. Who was friendly to Abdul Ghani and his son had concocted this prosecution version at their saying. The appellants produced D.W.1, D.W.2 and the copy of Roznamcha Waqiati.
7. After taking into consideration the prosecution as well as defence evidence, the learned trial Court came to the conclusion that the prosecution had established its case against the appellants and so convicted Noor Akbar to death penalty while Ahmad Fayyaz was sentenced to life imprisonment under section 302/34, P.P.C. Both the appellants were further awarded a sentence of fine of Rs,10,000 each and in case of default to undergo simple imprisonment for two years. It was further ordered that if the fine was recovered, half of it would be paid to the legal heirs of the deceased as compensation under section 544, Cr.P.C. The appellants have filed Criminal Appeal No,71 of 1988, the Criminal Revision No, 60 of 1988 has been filed by the complainant for the enhancement of the sentence of Ahmad Fayyaz and the Murder Reference No,124 of 1988 has been sent by the learned Additional Sessions Judge for confirmation of death penalty of Noor Akbar. The murder reference, the criminal appeal and the criminal revision are being disposed of by this single judgment.
8. Learned counsel appearing on behalf of the appellants impeached the finding of the learned Additional Sessions Judge on the following grounds:-- "(i) It was contended that the medical evidence was in conflict with the occular account. From the medico-legal report, it was clear that the deceased received 8 fire-arm injuries. The margins of wound of entry were black and inverted. According to the learned counsel it was, therefore, clear that Manzoor deceased was shot from a close range and not from 10 feet or 11 feet as stated by P.W.9 and P.W.10. Reliance was placed on Muhammad Achar v. The State (PLD 1990 Kar. 314), Ajun Shah v. The State (PLD 1967 SC 185) and Muhammad Ilyas and 5 others v. The State (PLD 1967 SC 443).
(ii) It was next contended that Dr. Muhammad Salim has assessed the duration between the death and the post-mortem examination on the basis of rigor mortis, condition of the body and condition of internal organs but it was clear that the Doctor has given a totally wrong and discrepent evidence with respect to phenomena of rigor mortis. It was stated that according to Dr. Muhammad Salim rigor mortis starts after two hours of death and remains upto 48 hours and starts declining after 48 hours. This opinion was negatived by the Expert opinion given in a treatise of Taylor "Principles and Practice of Medical Jurisprudence', 12th Edition page 287.
(iii) It was then contended that the evidence of P.W.10 Shah Muhammad and P.W.2, Khalil Ahmad was totally discrepant and untrustworthy. As far as the motive was concerned, it was argued that the story of the motive was afterthought. Similarly the evidence pertaining to recovery of rifle, empty cartridges and live cartridges was inconsequential as no empty was recovered from the venue of the occurrence. Furthermore, Aitbar Khan was given sealed parcel by Moharrar on 7-5- 1986. The parcel was not received by the Labortary on the ground that 5 live cartridges should have been in the parcel. Aitbar Khan again went on 11-5-1986 alongwith the parcel of rifle and 5 cartridges and delivered the parcel in Labortary on 12-5-1986. These circumstances totally demolish the evidentiary value of recoveries.
(iv) It was lastly contended that it was an unwitnessed murder; that the F.I.R. Was recorded by Ahmad Raza after making preliminary investigation at the spot. This was clearly proved by the statement of Aitbar Khan P.W.G.
9. The learned A.A.-G. Appearing on behalf of the State supported the impugned order. It was stated by him that occurrence took place at about 10-30 a.m The report was lodged without any further loss of time. The names of the appellants were mentioned and their roles were specified.
The promptitude with which the F.1.R. Was lodged excluded the possibility of false involvement/substitution. It was argued that the evidence of P.W.9 and P.W.10 was sufficient to prove the guilt of appellants. They were independent witnesses and had no animus towards the appellants.
10. We have heard the arguments of the learned counsel for the appellants as well as learned Addl.
A.-G. For the State and have gone through the record with their assistance. We herein proceed to determine the contentions raised by them.
11. As already noticed, prosecution version hinges upon ocular, corroborative evidence and account of motive. The evidence of motive is given by Khalil Ahmad P.W.3 who stated that he was present at the time of first occurrence. He further stated that no case was got registered by the accused who declared that they would take the revenge themselves. He further deposed that 5 persons from their side approached the accused to effect reconciliation but without any success. He admitted in cross-examination that he did not report the occurrence to the Police. When confronted with his statement under section 161, Cr.P.C., it was found that he did not state to the police that he was present at the time of first occurrence. We have therefore, no doubt in our mind that the testimony of this P.W. Is not trustworthy and is not capable of reliance. Same applied to the evidentiary value of Shah Muhammad, on this point. We have, therefore, no difficulty in reaching the conclusion that the prosecution has failed to establish motive. Having held so, we will examine the effect of this, at a later stage.
12. We now turn to the recovery evidence. It is clear from the case that no empty was recovered from the place of occurrence. The rifle, empty cartridges and live cartridges were produced by Ahmad Fayyaz on 22-4-1986. Aitbar Khan P.W.6 was handed over the parcels on 7-5-1986. The parcel of rifle was not received by the Laboratory on the ground that 5 live cartridges should have been sent in the parcel. The said witness came back and went again on 11-5-1986 with a parcel of 5 cartridges given to him by the Moharrar. He delivered these parcels in the Laboratory on 12-5-1986.
Furthermore, the Investigator stated that no empty was recovered from the scene of occurrence while P.W.9, Ali Muhammad stated that he had seen one empty at the place of occurrence. In the peculiar circumstance noted above, we are of opinion that the prosecution evidence with respect to recoveries is totally worthless and cannot be taken into consideration.
13. Now we revert to ocular evidence. P.W,9 Ali Muhammad narrated the occurrence. He was subjected to a lengthy cross-examination but nothing was extracted to deminish the evidential value of his testimony. He is the father of deceased, was present alongwith the deceased at the time of occurrence. He lodged the information with promptitude. Whatever was witnessed by him was reported with accuracy. The discrepancies with respect to distance from which Manzoor deceased was fired at, are in consequential. He stated to the effect that on seeing the rifle he alongwith Shah Muhammad had run to their houses while Manzoor deceased lagged behind on account of trouble in his foot: that they have witnessed the occurrence in such a circumstance. He, therefore, could not be expected to give a mathematical account of the distance between the assailants and the victims. We have no reason to doubt the intrinsic worth of his, testimony.
Similarly we find that the statement of Shah Muhammad rings truth. In view of this finding, we note that the objection of the learned counsel for the appellants that the ocular evidence is in conflict with the medical evidence, is totally misconceived. The opinions of medical experts arc confirmatory in nature. Such evidence can neither be conclusive nor mathematical. It will be worthwhile to notice a passage from the book of Modi's Medical Jurisprudence, which is quoted as under:-- "In conclusion it must be noted that a definite opinion about the distance from which a fire-arm was discharged should be given with caution. According to Taylor no general rule can be laid down. Firing experiments must be done with the weapon and cartridges (or loading) similar to those which are alleged to have been used. Fresh cleaned, shaved pig skin from a slaughter house is recommended for a firing experiments. S.S. Krishnan has described a neutron activation analysis method for determining firing distance by quantitatively estimating concentration pattern of small amount of antimony (a constituent of the bullet) deposited around bullet holes."
' Dealing with the nature of medical opinion qua ocular evidence, it was held in Gul Haider v. The State 1981 SCMR 464, that in presence of unimpeachable ocular evidence the discrepancies in medical evidence had to be ignored. The relevant passage is reproduced as under:-- "Even though the medical witness gave the opinion that death was instantaneous, it seems to us that the learned Judges in the High Court were right in discarding this opinion on account of the nature of the injury, namely, on the abdomen of the deceased. Such an injury need not necessarily cause instantaneous death. As observed by this Court in Yakoob Shah v. The State (PLD 1976 SC 53), "It is well-established principle that expert evidence, may it be medical or that of a Ballistic Expert, is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence. But if there is direct evidence, as in the instant case, which is definite, forthright and at the same time creditworthy, confirmatory evidence is not of much significance, cannot at any rate, outweigh direct evidence unless it is, for any reason deficient in quality. This cast in our opinion is not of that kind". These observations apply with full force to the facts of the present case before us.
The learned Judges have given cogent reason for holding that the deceased could not have died instantaneously in view of the nature of the injury sustained by him on his abdomen. There was, accordingly, no reason to reject the testimony of Sher Aslam as to the contents of the dying statement made before him by the deceased shortly after he had been injured by the appellant."
14. Having already concluded that the motive set up by the prosecution was not proved, we herein proceed to determine its effect. It is a settled principle of law that it is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and has failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence. Reference may be made to Hakim Ali and 4 others v. The State and another (1971 SCMR 432), Habib Ullah and another v. The State (PLD 1969 SC 127) and Chand Khan v.
Akbar and others (1986 SCMR 1878. We are of opinion that the prosecution has failed to explain the commencement of occurrence.
15. In the light of foregone analysis, it is quite clear to us that the origin of this occurrence has neither been explained nor proved by the prosecution. According to us, it was not the case of premeditated murder. The occurrence might have taken place all of a sudden and Ahmad Fayyaz might have been present. Seen from this angle, we are clear in our mind that the case of prosecution against Ahmad Fayyaz is not free from doubt. We, therefore, extend the principle of benefit of doubt to Ahmad Fayyaz and he is acquitted. The deceased Manzoor Ahmad had 6 fire- arms injuries which were caused by rifle. The opinion of Doctor also confirms that these injuries were sufficient individually and collectively to cause his death. Thus the act of Noor Akbar clearly falls within the ambit of section 302. However, in our view the death penalty in the circumstances of the case will not be in consonance with the safe dispensation of justice. In such cases where the immediate cause of attack is not known, extreme penalty is not called for. We allow the appeal and alter the sentence from death penalty to life imprisonment. The sentence of fine of Noor Akbar is maintained. If it is realized 50% of it shall be paid to the legal heirs of the deceased. The benefit of section 382-B, Cr.P.C. Is extended to the appellant. In these terms the appeal to the extent of Nom Akbar is accepted. The sentence of death is not confirmed. The criminal revision tiled by the complainant is dismissed and Ahmad Fayyaz is acquitted. He shall be released if he is not wanted in any other case.