FAZAL ILAHI KHAN, J.---The accused/respondent No.1 alongwith others was tried by Sessions Judge, Rajanpur for the charge under sections 382/411 and 302/34, P.P.C. In case F.I.R. No.34 dated 9-2-1989 registered at Police Station Rojhan, District Rajanpur. The learned Sessions Judge by judgment dated 23-12-1990 found the respondent guilty of the offence of murder and on conviction was sentenced to death subject to confirmation by the High Court under section 374, Cr.P.C, while rest of the accused acquitted of the charge. The accused/respondent alongwith his co-accused was also found guilty of the offence under section 382, P.P.C. And on conviction sentenced all of them to undergo 3 years' R.I. Each. As Kathu co-accused was caught on the spot, while taking away the camel (the theft property), he was also convicted under section 411, P.P.C.
And sentenced to 2 years' R.I. All of them were given benefit of section 382-B, Cr.P.C. The sentence of imprisonment awarded to the accused/respondent was ordered to run first.
2. On appeal filed by the respondent/accused against' his conviction and sentence and the reference placed before it a Division Bench of Lahore High Court, Multan Bench, accepted the appeal, set aside the conviction and sentence and acquitted him of the charge per judgment dated 17-10-1993. Murder reference was accordingly, not accepted.
3. The learned High Court acquitted the accused/respondent on the grounds that the prosecution failed to prove the charge against him beyond any reasonable doubt, as Ali Baig deceased who was seriously injured in the inner region and his body was badly damaged, as such was not in a position to make any statement before the police; that the Doctor has stated that there was a possibility of the injured going to the state of unconsciousness after receipt of the injuries; that dying declaration was not recorded in accordance with the rules; that Waris Ali Constable (P.W.2) who accompanied the injured from hospital to D.I. Khan, stated that the condition of Ali Baig was not satisfactory as some the he would talk and the other the he did not talk; that the person who had brought the injured to Rojhan told to the Investigating Officer that they had not witnessed the occurrence and that they had reached the place after they heard the shot; that the injury-sheet and inquest report of the deceased were not prepared on 8-2-1989 as the date given is 18-2-1989 as the date of its preparation though the Doctor has conducted post-mortem examination on 9-2- 1989. It was further observed that Kathu accused had disclosed the I.O. The names of his co- accused. Reference is also made to the statement of Ali Murad (P.W.6) to show that it was a dark night and that his father (deceased) had flashed the torch-light at once and in the light all the accused were identified. From all what has been stated above the learned High Court held that ocular evidence was highly doubtful whether they had seen the occurrence. The motive and recovery of the weapon was also found to be not confidence inspiring.
4. Leave was granted against the judgment of Lahore High Court to consider the contention of the learned counsel for the complainant that there is reliable direct ocular evidence furnished by natural witnesses which is corroborated by medical and unimpeachable circumstantial evidence.
That the Doctor's statement that the injured might not have been able to speak wrongly prevailed with the learned High Court against the direct evidence. That the recovery of crime empties which was sent just after the recovery to the Forensic Science Laboratory and subsequent to it the recovery of crime weapon after a long the and its despatch to the Forensic Science Laboratory thereafter has totally been ignored by the learned High Court while discarding the positive report of the Forensic Science Laboratory and lastly that the learned High Court was not justified in rejecting the direct evidence under the law which is corroborated in all respects; medical and circumstantial evidence has been discarded on assumption and inferences drawn on misreading of evidence.
5. Learned counsel appearing for the respondent/accused supported the judgment of the learned High Court while the learned counsel appearing for the State supported the contention raised by the learned counsel for the appellant, which he has raised at the the of hearing of the petition and which has been reiterated before us.
6. The occurrence in this case took place on the evening of 7th February, 1989 and its F.I.R. Was registered on 8-2-1989 at about 3.15 a.m., on the statement of Ali Baig deceased, then injured. This statement was recorded by Khadim Hussain, A.S-.I. It was reported by Ali Baig that he had teathered his camel in front of his house and he himself alongwith his family members was asleep in the house. It was at about 1-30 a.m. That he heard barking of his dog on which he and his sons Ali Murad (P.W.6) and D.I Murad (P.W.8) woke up and came out of the house. In the light of torch he saw Kathu armed with a Dang, Gul Muhammad alias Gullo also armed with Dang, Ayub son of Murad armed with .12 bore gun and Muhammad Ali son of Murad. They had caught hold of his camel from the string and were proceeding ahead. They challenged the accused to stop at which they presented and asked the complainant to keep away. He, however, followed the accused and with the help of his sons succeeded in apprehending Kathu accused. In the meanwhile Ayub fired at him which hit him whereafter he fell down on the ground. Rest of the accused decamped from the spot leaving the camel behind. The injured was being taken to hospital for medical treatment when they came across the A.S.-I. Who recorded his statement. After recording the statement the injured was taken to Rojhan Hospital but in view of precarious condition the Doctor present on duty referred him to hospital at Dera Ghazi Khan where he was admitted for medical treatment whereafter 10 minutes he expired.
7. Kathu who had been arrested at the spot had received some injuries during the scuffle, therefore, the A.S.-I. After his formal arrest sent him to hospital for medical examination at Rajanpur. The Doctor found 3 injuries simple in nature on the person of Kathu received in the scuffle at the the of his arrest by the complainant party.
8. The I.O. Then left for the spot, prepared the site plan, recorded statement of D.I Murad, who produced torch P.I.O. And the camel before him, which was taken into possession vide memo.
Exh.PK. He also recovered blood--stained earth through memo Exh.PL. He also recovered an empty cartridge at the place where Ali Baig had been fired at.
9. On receipt of information that the injured has expired the I.O. Went to District Headquarter, Dera Ghazi Khan and prepared the inquest report Exh.PJ and got the post-mortem examination of the dead body of the deceased. He took into possession last worn clothes of the deceased vide memo.
Exh.PB. Muhammad Ali, Gul Muhammad and Ayub were arrested on 26-2-1989 and after obtaining their physical remand all the three accused led the police party to their respective houses wherefrom the respective weapons of offence were got recovered at their instance.
10. On going through the entire evidence with the help of the learned counsel for the parties we are of the view that the learned High Court failed in properly appraising the prosecution evidence, rather very important and material evidence has been either ignored or discarded on wrong assumption on inferences drawn for which there was no basis in the evidence and on its basis acquitted the accused/respondent by extending the benefit of doubt. We are conscious of the fact that in an appeal against acquittal, the material which prevailed with the learned High Court shall be thoroughly considered to ascertain whether the doubt entertained by the learned High Court on the basis of assumptions and inferences spelled out from the record, if so no interference will be required but if it is otherwise then interference is the mandate of law for doing complete justice.
11. The learned High Court discarded the dying declaration in the case on the grounds; that the injuries on the person of the deceased were in the inner region, therefore, it would not have been possible for him to have made the statement and for that the learned High Court relied on the statement of the Doctor in the cross-examination that there was possibility of the state of unconsciousness after the receipt of the injuries; that the police did not observe the rules for recording of dying declaration and that according to Basharat Constable (P.W.4) that while taking the injured to the hospital he sometime talked and sometime did not talk. All these grounds which prevailed with the learned High Court are not substantial in nature but conjectural and is the result of cursory reading of the prosecution evidence in isolation. Ghulam Farid, Sr. Medical Officer, D.H.O., Dera Ghazi Khan (P.W.7) found the following injuries on the person of the deceased:-----
(i) Five fire-arms wounds in an area of 4" x 4" x chest cavity deep lower chest and outer aspect of left lower chest and upper abdomen. Each wound was 1 c.m. x 1/2 c.m. x chest cavity deep. The edges of wounds were rough inverted and black. This was the wound of entrance.
(ii) Six fire-arm wounds at the front of left lower chest. Hypochodium and epigastrium in an area of 6" x 6" x chest cavity and abdominal cavity deep. Each wound 3/4 c.m. x 3/4 c.m. Almost circular.
The edges of wounds were evened, rough and torn. This was wound of exit.
In the cross-examination the defence counsel put only one question to the Doctor about the possibility that the injured might have gone to the state of unconsciousness. This piece of evidence was taken for granted in holding that the injured had become unconscious on receipt of the injuries and that he did not make any statement. The Doctor's opinion and that to, opinion of possibility, wrongly prevailed with the learned High Court in discarding direct evidence of the A.S.-I.
Who recorded the injured statement and the ocular evidence of the 2 eye-witnesses who were present with the injured. Khadim Hussain, A.S.-I., (P.W.10) stated at the trial that the injured while making his statement was in full senses and he denied the suggestion that while recording the statement the injured was unconscious or that he recorded the statement of his own. The version given by the injured incorporated in the F.I.R. Is further supported by the ocular evidence given by the 2 eye-witnesses; namely, Ali Murad and D.I Murad and further corroborated by the statement made by Ali Gul (P.W.9). Ali Gul (P.W.9) who resides in the vicinity of the place of occurrence had stated that on hearing the fire shot from the side of the house of Ali Baig deceased he alongwith Hazoor Bakhsh went towards that side and found Ali Baig in injured condition lying there. Ali Murad and D.I Murad had captured Kathu accused. Ali Baig told him that he was injured by Ayub by firing at him with his gun. No doubt Ali Murad and D.I Murad are the sons of the deceased and Ali Baig deceased is cousin of Ali Gul P.W. But all the three witnesses are natural witnesses as the aforementioned 2 reside with their father while the 3rd one resides in the vicinity. In absence of any previous enmity or any motive for false involvement the statement of these witnesses cannot be discarded merely on the ground that they are related to the deceased. Similarly there is no evidence on record to show as to who were the persons from whom (Waris Khan) P.W.4 enquired at the the when they were taking the injured to hospital, whether they had witnessed the occurrence or not. Waris Khan, Constable (P.W.4) in this regard making such statement in favour of the accused with which he was not concerned cannot be relied upon as held in Sikandar Shah-- Appellant v. The State--Respondent (PLD 1965 (W.P.) Peshawar 134). The discrepancy pointed out by the learned High Court in the date mentioned in the injury report and that given in inquest report has been fully explained by the Investigating Officer that he instead of 8-2-1989 has inadvertently written 18-2-1989 under his signature which get support from the Doctor's statement and the case diary. Such clerical mistake has been sufficiently explained and has rightly been held immaterial by the learned Trial Judge.
13. The assumption by the learned High Court that as the I.O. Has stated that Kathu accused told him the name of his co-accused therefore, neither deceased nor the to eye-witnesses had identified the accused persons; is mis conceived. Such statement does not belie the prosecution evidence regarding the identity of the accused at the the of occurrence rather it corroborates the ocular evidence. The inference drawn from the statement of Ali Murad (P.W.6) that as they came out of their house his father had flashed torch light "at once" and in the light all the accused were identified, is due to misreading of the statement as if only once the torch was flashed, in holding the identification of the accused doubtful. No reason is given by the learned High Court in holding that the medical evidence is not in conformity with the prosecution case. The deceased received injury on his front while he was pursuing the accused party which fact is fully corroborated by the medical evidence. The absence of motive was also taken to be a circumstance creating doubt in the prosecution case though no motive was alleged. In fact the occurrence took place when the accused while committing theft of the camel belonging to the deceased was challenged. Motive, therefore, is of no substance in the present case.
14. The accused were previously known to the deceased and were identified in the light while they were taking the camel. The deceased and his to sons followed them and reached close to them so much so that one of the accused viz: Kathu was apprehended, therefore, the identity of the accused was sufficiently proved beyond any reasonable doubt.
15. The Investigating Officer at the the of inspecting the spot recovered an empty from the site which was taken into possession and sent to Forensic Science Laboratory, alongwith the recovered gun subsequently recovered at the instance of the accused. According to the Arms Expert Report empty is fired from said gun. The Arms Expert Report, therefore, furnished strong corroborative evidence to the dying declaration and the ocular evidence.
16. From all these reasons we are satisfied that in the absence of any motive for false charge the prosecution has proved its case against the accused beyond any reasonable doubt as was held so, rightly, by the learned Trial Judge. The learned High Court did not appraise the prosecution evidence in its true perspective while administering criminal justice. Accordingly, the appeal is accepted, the judgment and order of the learned High Court is set aside and that of the Trial Court is restored with modification that sentence of death imposed upon Ayub accused son of Murad under section 302, P.P.C. Is altered to one of imprisonment for life. The accused shall be entitled to the benefit of section 382-B, Cr.P.C.