Z. A. CHANNA, J. Appellant Ghulam Hussain has been convicted by the learned Sessions Judge, Nawabshah, under section 302 read with section 34, P. P. C., for committing the murder of one Mir Muhammad, and awarded transportation for life. Two other persons, who were tried with the appellant namely, Ibrahim and Ghulam Kadir, were acquitted by the learned Sessions Judge.
2. The case of the prosecution is that on the night intervening between 18th and 19th November 1967, complainant Muhammad Usman, his elder brother Muhammad Umar, deceased Mir Muhammad, Raban and some other persons gathered at the otak of Muhammad Uat for a chit- chat. The gathering broke up at about 1-- pahar after sunset, which would be about 11-30 p.m.
Thereafter, the deceased went to look after his nearby cotton cultivation, while his father Muhammad Umar waited at his otak for him. Shortly thereafter, there was a gun-report accompanied by cries, on which Muhammad Usman, Raban and some other persons of the village went out running. They found Mir Muhammad lying on the ground, a short distance away from the otak of Muhammad Umar. He had gun-shot injuries which were bleeding. He informed the witnesses that as he was returning to his otak from his cotton cultivation, he heard a call from the eastern side and on going towards that side lie saw three persons standing under a bubal tree, whom he recognized in the moon light to be Ghulam Hussain Moroji, Ibrahim and Ghulam Hussain, of whom Ghulam was armed with a gun, Ibrahim with a hatchet and Ghulam Kadir empty -- handed. He further told the witnesses that Ghulam Hussain gave him a challenge and immediately thereafter fired his gun at him, hitting him in the stomach, in consequence of which he fell down and did not know anything else. The motive for the murder is said to be the rivalry between deceased Mir Muhammad and appellant Ghulam Kadir over the affections of a boy by name Haji.
3. The F. I. R. Was lodged the same night, at 1 a.m. By Muhammad Usman, the paternal uncle of deceased Mir Muhammad, at Darya Khan Mari Police Outpost, which is three miles away from the scene of offence. After recording the F. I. R., A. S. I. P. Muhammad Yousuf accompanied the complainant to the scene of offence. Where he recorded the statement of injured Mir Muhammad in the presence of mashies Noor Muhammad and Muhammad Ramzan. He also prepared a mashirnama of the injuries on Mir Muhammad and then referred him to the Nawabshah District Hospital for treatment. The injured. However, died on the way to the hospital. Early the next morning, the A. S. I. P. Inspected the scene of offence in the presence of the above two mashirs and secured from there blood-stained earth under mashir--nama Exh.
26. He also, on the same day, recorded the statements of P. Ws. Rabban and Wassan. On 21-11-1967, appellant Ghulam Hussain was produced before the A. S. I. P at the otak of Haji Dhani Bux, alongwith his licensed gun, licence and cartridges, which the A. S. I. P. Seized under Mashirnama Exh.
27. On the same day acquitted accused Ibrahim was arrested, while G. Kader was arrested on 26-11-67. On 9-12-1967, the appellant and the two acquitted accused were challaned.
4. The autopsy on the deceased was conducted by Dr. Anwaruddin, who was then Sub-Charge Civil Hospital, Nawabshah. On external examina--petition, be found the following injuries on the deceased:-
(1) A gunshot wound 1/3' in diameter near the right side of umbilicus with a loop of omentum protruding out and margins slightly black--ened (wound of entrance).
(2) A gunshot wound 1/3' in diameter over the front of thigh at the junction of lower 1/3rd and upper 1/3rd of the left thigh.
(3) A gunshot wound J' in diameter on the back of the left thigh in relation to the injury No. 2 but higher in level. The margins were black and were outwardly directed (wound of exit).
(4) Four irregular gunshot wounds placed in arch shape with concavity upwards over the lateral part of the left gluteal region (wound of entry).
(5) Palpable bullets under the fasia which were directed out from the limber right back near the angle.
On internal examination, the Doctor found the peritoneum of the deceased ruptured at two places anteriorly and posteriorly, there was big haemorrhage in the peritoneum, and the small intestine and the right kidney were ruptured.
5. The appellant has denied that he had caused any gunshot injuries to the deceased or that there was any rivalry or ill-will between him and the deceased. In answer to the question in the Sessions Court why P. Ws. Umar, Usman, Rabban and the A. S. I. P. Were deposing against him, he has stated as follows:-- "Due to enmity, P. W. Usman is married to my sister and a hand of a girl was promised in compensation towards the hand of my sister and subsequently Usman and others refused. There is enmity over the land also. Before this incident Khadim brother of accused Ibrahim was challaned for murder of Dhani Bux a near relation of the complainant party and he was acquitted from the Court of Session. There is enmity between Ghulam Hussain and accused Ibrahim over the lease of land. For these reasons I am implicated in the case."
6. The main evidence in the case is the dying declaration of deceased Mir Muhammad. The deceased is said to have not only given the names of his assailants to his father Umer, complainant Usman, P. W. Rabban and others, who had come up on his cries, but further made a detailed statement to A. S. I. P. Mohammad Yousuf in the presence of mashirs Noor Muhammad and Muhammad Ibrahim, which the A. S.I. P. Recorded and on which the A. S. I. P. Obtained the thumb-impression of the deceased and signature of the mashies. We find ourselves unable to place any reliance on this piece of evidence. The medical evidence shows that the deceased had sustained several serious injuries on vital parts of his body, which were the result of not less than three gunshots. In his cross-examination, the Medical Officer, who conducted the autopsy, has admitted that the death of the deceased could have been instantaneous following the receipt of injuries, and the deceased may not have been able to remain completely conscious after these injuries, specially of the abdomen. The deceased is said to have sustained the injuries about 1-- pahars after sunset, which as already indicated would correspond to 11-30 p.m. Even if we accept the evidence of the A. S. I. P. That he reached the scene of offence at 2-40 a.m. It is hardly likely that the deceased would have been alive by then or at least in a position to make the detailed statement which has been recorded by the A. S. I. P. It is interesting to note that the dying declaration is substantially a repetition of the F.I.R. Another circumstance which casts suspicion on the dying declaration is that whereas it indicates that only one shot was fired at the deceased, the medical evidence is to the effect that at least three shots were fired at him and hit him. We have examined the original dying declaration (Exh. 24) recorded by the A. S. I. P. And find that the thumb- impression thereon, which is said to be of the deceased is extremely faint and incapable of comparison. The possibility of this thumb impression being of a dead or unconscious man, in our opinion cannot in view of all the attendant circumstances be excluded.
7. The evidence of the production of gun by the appellant does not in any way lead to an inference of his guilt. The gun produced by the appellant was shot-gun, while the deceased was shot at by a bullet firing gun as is clearly indicated by the fact that bullets were dissected out of the body of the deceased. The shot-gun produced by the appellant, from which apparently only cartridges can be fired, could thus not have been the weapon used in killing the deceased. As to what became of the bullets that were dissected out from the deceased, there is no evidence.
8. There remains the evidence of the three eye-witnesses, namely. P. W. Umer, complainant Usman and P. W. Rabban. Both complainant Usman and P. W. Rabban have admitted that they did not see the attack on the deceased but were given the names of the assailants of the deceased by the deceased himself. We have already pointed out that it is most unlikely that the deceased was in a position to make a statement after he had been hit by more than three gunshots. The evidence of these two witnesses, therefore does not in any way assist the prosecution case. These two witnesses have tried to show that the deceased was given a hakkal (challenge) by appellant Ghulam Hussain and that they had identified the voice of the person giving the challenge. There is, however, no mention in the F. I. R. About any challenge having been given by the culprits or the witnesses identifying them by their voice.
9. The evidence of P. W. Umer, the father of the deceased, is equally unconvincing. According to him, he had first waited for deceased Mir Muhammad at his otak and thereafter had gone out for answering a call of nature and just as he had finished easing himself he saw his son Mir Muhammad coming and when the deceased was about half 'Jareeb' away from his house, appellant Ghulam Hussain and the two acquitted accused came out from the shadow of a tree, went near deceased Mir Muhammad and fired two gunshots at the deceased, whereupon he raised cries, on which complainant Usman, Rabban and others came out. The story given by Umer is highly improbable. In the first place, there was no reason for him to wait at the otak for Mir Muhammad at such a late hour of a winter night. Secondly, the F. I. R. Does not indicate that he had actually seen the deceased being fired at. Thirdly, his evidence is at variance with the medical evidence, which is to the effect that at least three gunshots were fired at the deceased, while according to the evidence of this witness in the Sessions Court, two gunshots were fired at the deceased, and according to his 164, Cr. P. L statement and hiss deposition in the Committal Court, only one shot was fired at the deceased.
10. As there is no reliable or trustworthy evidence to connect the appellant with the murder of the deceased, we would accept his appeal and set aside his conviction and sentence and direct that he should be set at liberty if he is not required in any other case.