' NASIR-UL-MULK, J.--- Criminal Appeal No,12 of 1993, Criminal Revision No,5 of 1993 and Criminal Revision No,13 of 1993 have been placed before me for my opinion under section 429, Cr.P.C. After two Honourable Judges sitting in Division Bench heard the matters but gave divergent opinions; one Honourable Member of the Bench dismissed Criminal Appeal No,12 of 1993 filed by Muhammad Taj against his conviction and sentence and at the same time also disallowed Criminal Revision No,13 of 1993, preferred by Abdul Jabbar for enhancement of the sentence of Muhammad Taj, and Criminal Revision No,5 of 1993 of Muhammad Taj, against the acquittal of Khalid Mahmood in cross-case. The other Honourable Member allowed Criminal Appeal No,12 of 1993 and set aside the conviction and sentence of Muhammad Taj while dismissing Criminal Revision No,13 of 1993 and Criminal Revision No,5 of 1993.
2. Muhammad Taj and five others, namely, Akram, Taj, Nazim Zia, Amjad Pervez, Sultan Afsar and Abdur Rehman were jointly tried by the Sessions Judge, Haripur under section 302/324/148/149, P.P.C. For forming unlawful assembly and committing rioting while armed with deadly weapons, for committing the murder of Khan Afsar deceased by firing at him and for attempting at the lives of Khadim Hussain, Muhammad Rafiq and Wahid Akhtar by effectively firing at them. On 31-1-1993 the trial Court acquitted all the accused but Muhammad Taj who was convicted and sentenced as under:--
(i) Under section 302, P.P.C. For causing death of Khan Afsar convicted and sentenced to imprisonment for life and to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to undergo further imprisonment for 6 months.
(ii) Under section 324 for causing injuries to Khadim Hussain to suffer rigorous imprisonment for ten years and also to pay a fine of Rs,1,000 or in default of payment of fine to suffer rigorous imprisonment for a further period of six months and also to pay Rs,10,000 to Khadim Hussain injured as compensation in the form of 'Daman'.
(iii) Under section 324 for causing injuries to Wahid Akhtar to suffer rigorous imprisonment for ten years and also to pay a fine of Rs,1,000 or in default of payment to suffer rigorous imprisonment for further period of six months and also to pay Rs,10,000 to Waheed Akhtar injured as compensation in the form of 'Daman', and
(iv) Under section 324 for causing injuries to Muhammad Rafiq to suffer rigorous imprisonment for ten years and also to pay a fine of Rs,1,000 or in default of payment to suffer rigorous imprisonment for further period of six months and also to pay Rs,10,000 to Muhammad Rafiq injured as compensation in the form of 'Daman'.
' All the sentences of imprisonment were ordered to run consecutively. In case of non-payment of '
Daman' the convict was to remain in prison to undergo simple imprisonment even after the expiry of the substantial sentences, until payment. The trial Court had also charged and tried Khalid Mahmood under section 337-A(ii), P.P.C. In cross-case for inflicting axe blow on Akram Taj but he was acquitted of the charge.
3. The prosecution case which gave rise to Criminal Appeal No,12 of 1993 is that on the night between 10-7-1991 and 11-7-1991 Khan Afsar along with Khalid Mahmood, Farman Elahi and his servant Khadim Hussain, all residents of Akbar Abad had gone to Village Ladha to see a musical performance of dancing girls arranged to celebrate the marriage of the two sons of one Malik Muzaffar. During the performance a stone was thrown into dancing area, which angered Muhammad Taj, who was armed with .12 bore shot gun, and suspecting Khan Afsar and company of the deed abused them. The matter was temporarily settled. However, in the early hours of 11-7- 1991 at about 3-15 a.m. After the performance had ended, Muhammad Taj alongwith his companions, Akram, Taj, Abdur Rehman, Nazim Zia, Amjad Parvez and Sultan Afsar attacked the members of Khan Afsar's group. Muhammad Taj fired with his shot gun at Khan Afsar which hit him and at the same time Khadim Hussain, Wahid Akhtar and Muhammad Rafiq also received fire-arm injuries. Khalid Mahmood thereafter, took Khan Afsar to the Civil Hospital, Haripur, situated at a distance of 13/14 kilometres from the place of occurrence, where Khan Afsar reported the incident to Arif Jived, A.S.-I., who was on Gasht and had arrived at the hospital after receiving information about the crime. The information furnished by Khan Afsar was reduced into writing at 4-30 a.m.
Duly thumb-impressed by Khan Afsar and signed as an attesting witness by Khalid Mahmood.
Murasila of the report Exh.P.A./1 was sent to the Police Station Kot Najibullah for registration of the case which was registered at 5-30 a.m., vide F.I.R. No,104, Exh.P.A. After initial medical examination at the Civil Hospital, Haripur by Dr. Shaukat Hussain, Khan Afsar was shifted to the District Headquarters Hospital, Abbottabad'as his condition was serious. At the District Headquarters Hospital, Abbottabad, Khan Afsar succumbed to his injuries.
4. Meanwhile the other three injured were also brought to the hospital, who were treated by the same doctor (Dr. Shaukat Hussain) between 5-15 a.m. To 5-20 a.m. It may be mentioned here that Khan Afsar had also been examined at 5-15 a.m. On the same day at 7-30 a.m. Akram Taj accused was also medically examined by Dr. Shaukat Hussain at Civil Hospital, Haripur.
5. Arif Javed, A.S.-I. After having sent the Murasila for registration of the case worked on with the investigation. He prepared the injury-sheets Exh.P.W.5/1, Exh.P.W.5/2, Exh.P.W.5/3 and Exh.P.W.5/4 of Khan Afsar, Khadim Hussain, Muhammad Rafiq and Waheed Akhtar, respectively. He took into possession shot gun vide recovery Memo. Exh.P.W.3/1 at the pointation of Muhammad Taj accused and prepared site plan Exh.P.W.5/8 of the house from where the recovery was effected. The remaining investigation was taken over by Muhammad Jamshed Khan, S.H.O. Of the police station.
He prepared the site plan Exh.P.W.10/1 and during spot inspection took into possession one bloodstained plastic envelope, two pieces of cloth, one cuff of the shirt, all bloodstained, through Memo. Exh.P.W.7/1. The S.H.O. Took into possession a stick produced by Abdur Rehman accused from his house while in custody through Memo. Exh.P.W.5/7. A site plan of this recovery was prepared vide recovery Memo. Exh.P.W.10/3. The blood-stained clothes of the deceased and sealed phial containing 43 pellets and a card board brought from hospital by Khan Draz were produced to the S.H.O. Who took them into possession by recovery Memo. Exh.P.B. Muhammad Taj accused was arrested by the Head Constable from his unit and produced before the S.H.O. Whereas the other accused were arrested by him directly. The blood-stained articles were sent to the Chemical Examiner, whose report is Exh.P.W.10/5. Complete challan was also submitted to the trial Court by Muhammad Jamshed Khan, S.H.O.
6. Dr. Shaukat Hussain who had examined all the injured at Civil Hospital, Haripur gave the following opinion about the injuries sustained by Khan Afsar, who was still alive:
(1) Fire-arm entry wound at hypogastrium 2" x 2-1/2" in diameter blackening of edge. Internal viscera injured and visible from the wound. Bleeding excessively.
(2) Six independent fire-arm entry wounds 0.1" x 0.2" diameter on the left side of wound No,1 over the abdomen.
(3) Fire-arm wound with blackening of edges on the ventral surface of right wrist-joint, tend and vessels injured. Bone fractured clinically. Bleeding excessively.
(4) 18 to 20 fire-arm entry wounds on the interior and medical surface of left forearm and elbow with blackening in edges of many entry wounds. Elbow swollen and immobile.
' Injuries caused by fire-arm. All grievous. Patient is shock and serious. Duration was two to three hours. Referred to D.H.Q. Hospital, Abbottabad after first aid.
' Dr. Nayar Bashir who had conducted the post-mortem examination of Khan Afsar deceased at the D.H.Q., Abbottabad found the following:--
(1) A stitched lacerated wound on pubic horizontal 2-1/2" long 1-1/2" above penis.
(2) Crush injury on medial side of right hand and right forearm. Vessels crushed, bone ulna broken.
Injury is 3" long and 1-1/2" in breadth.
(3) Thirty perforations on anterior side of left forearm swelling is positive. Blackening positive. All entry wounds. No exit wound found. Fourteen pellets removed.
(4) Six perforations on anterior side of left upper arm. Blackening present. All entry wound. No-exit wound. Six pellets recovered.
(5) Four abrasions on interior side of left forearm.
(6) Perforation on anterior side of left shoulder joint and 3" inferio medially. Another perforation 1/4 c.m. x 1/4 c.m. In size. No exit wound.
(7) Four perforations on left side of pubic 1/4 c.m. x 1/4 c.m. In size. No exit wound.
' In the opinion of the doctor the cause of death was on account of multiple firearm injuries leading to excessive haemorrhage and loss of blood plus rupture of urinary bladder. Excessive internal and external haemorrhage leading to hypoolemic shock leading to cardic pulmonary rest and ultimately death of the person Probable time between injury and death was estimated between 6 hours.
' Dr. Shaukat Hussain, who had also medically examined the other injured, found two entry wounds on the person of Khadim Hussain and Muhammad Rafiq and 4 entry fire-arm wounds on Waheed Akhtar. Three injuries were found on Akram Taj accused, one lacerated wound 3" long on the vertex bone deep, a superficial skin deep lacerated wound over the left forearm and a bruise on the back.
The injuries were opined to have been caused by blunt weapon. The Sessions Judge framed the charge on 2-6-1992, to which the accused pleaded not guilty and chose to defend themselves. The prosecution case mainly rested on the dying declaration that was ultimately incorporated in the F.I.R., the ocular testimony of Khalid Mahmood (P.W.7), and the two injured eye-witnesses Abdul Waheed (P.W.8) and Khadim Hussain (P.W.9), the other injured eye-witnesses Muhammad Rafiq was abandoned. Support was also sought from the recoveries and the medical evidence. For this purpose the prosecution examined 12 witnesses.
7. The defence did not produce any witness. However, Muhammad Taj accused in response to a question under section 342, Cr.P.C. As to what was his statement and why was he charged, made the following statement:-- "I am innocent and falsely been involved in the case. I alongwith my brother Akram Taj was present in the musical function of the marriage ceremony of the son of Muzaffar Khan where the girls were dancing. During musical function an altercation took place between deceased and us over pelting stones on the dancing girls. After the musical function when I was present in the fields of Ghulam Muhammad, I was beaten by Khalid and deceased Khan Afsar. My brother Akram Taj also reached the spot on my hue and cry over which Khalid P.W. Dealt an axe blow and injured him. Khan Afsar deceased also dealt a blow with butt of a gun to my brother Akram Taj and injured him. There was a pitch darkness at the scene of occurrence. About 100 persons gathered at the spot and during quarrel some unknown persons opened the fire due to which the injured and the deceased sustained the injuries. As there were many persons in the function armed with shot gun and other weapons and in the darkness some unknown persons opened the fire. The occurrence took place when my brother was going towards the place where the cattle were being slaughtered for the morning meal."
' Similar answers were given by the other accused to the same question put to them under section 342, Cr.P.C.
8. Mr. Abdullah Jan Mirza, the learned counsel representing the convict Muhammad Taj in Criminal Appeal No,12 of 1993 and Criminal Revision No,13 of 1993 and petitioner Akram Taj in Criminal Revision No,5 of 1993, confined his arguments to the first two matters and used criminal revision against acquittal of Khalid Mahmood to make out a case of self-defence. As to the merits of the appeal the learned counsel argued that the dying declaration is a suspect document because; firstly, it was recorded at 4-30 a.m. Whereas Khan Afsar was examined at 5-15 a.m. By the doctor who had stated that he was present in Emergency Room when Khan Afsar was brought by Arif Javed, A.S.-I. Whereas P.W. Khalid Mahmood, who had accompanied Khan Afsar to the hospital, in his cross-examination had claimed that the injured had already been given First Aid treatment before the arrival of the A.S.-I.; secondly, it is not clear as to when and where was the dying declaration recorded and thirdly, there is no evidence that Khan Afsar was in his sense at the time of making the report. Reference was made to the case-law in Sher Bahadur v. State 1972 SCMR 651, Sikandar v. State 1990 PCr.LJ 396 and Muhammad Anwar v. State PLD 1984 Lah. 132 for the proposition that a dying declaration is a statement of an interested person and requires close scrutiny as well as corroboration. In this context reference was also made to the testimony of P.W.
Khalid Mahmood, who in his cross-examination had stated "after recording my report the local police let me free and I took the deceased to D.H.Q. Hospital, Abbottabad". From this disclosure it was argued that the report was made by P.W. Khalid Mahmood and not by Khan Afsar deceased.
The ocular testimony, it was contended, is intrinsically contradictory as the three eye-witnesses had given materially different versions of the occurrence. None of the witnesses it was pointed out had disclosed the manner of attack in their examination-in-chief, and while in their cross- examination P.W. Khalid Mahmood and Abdul Wahid had alleged the pelting of stones before the firing P.W. Khadim Hussain totally denied the stone pelting in his cross-examination. In view of the principle laid down in Abdul Ghafoor v. The State 1982 SCMR 162 the benefit of suppression by complainant party pf the actual happening it was maintained should be given to the accused. In this context the learned counsel also pointed out to the suppression of injury to Akram Taj accused and the cause for the sustaining of injury by blunt means by the deceased. Ocular testimony, it was argued, was also inconsistent with the medical evidence as blackening was found on the injuries of the deceased, which could not have been caused from 22 feet, which according to the site plan was the distance between Muhammad Taj and Khan Afsar at the time of firing. The learned counsel further urged, and did so vehemently, that the prosecution has not proved positively that there was any artificial light, as the source of any such light has not been taken into possession by the Investigating Officer and admittedly, according to the statement of P.W. Khalid Mahmood, there is no electric power in village Laddah. In the alternative the learned counsel maintained that the injuries of Akram Taj accused, for which a cross-case was also registered, coupled with the evidence that there was stone pelting, seen in the light that the occurrence was a result of sudden flare up between the parties, was sufficient to extend the right of self-defence to the accused.
Reliance was placed on Muhammad Ismail v. Liaqat 1984 SCMR 1053, Niamat v. State 1984 PCr.LJ 120 and State v. Juma PLD 1989 Pesh.
149. The learned counsel assailed the awarding of consecutive sentences by the trial Court and submitted that these are illegal under section 35, Cr.P.C. And in the light of the rule laid down in Javed Shaikh v. The State 1985 SCMR 153, Mst. Nazan v. The State 1996 PCr.LJ 95.
9. Mr. Ghulam Mujtaba Khan Jadoon, Advocate who appeared for the complainant in Criminal Appeal No,12 of 1993 and for the petitioner in Criminal Revision for enhancement of sentence and for the accused-respondent Khalid Mahmood in criminal revision against acquittal, contended that there was no question of mistaken identity as the occurrence had taken place soon after the musical performance ended which could only have taken place in a well-lit place. It was pointed out that the complainant party had no previous enmity with the accused nor with anybody else and, therefore, there was no reason for false implication. It was next argued that even the accused in their statement under section 342, Cr.P.C. Had neither denied their presence nor the event but had only twisted it in their favour to make out a case for self-defence. The prosecution, it was maintained, had established its case beyond reasonable doubt through the dying declaration and ocular testimony of three eye-witnesses, two of whom were injured in the incident. Minor discrepancies, it was contended would not falsify the prosecution case as they can aptly be attributed to human frailty reliance was placed on Khaliq Dad v. State 1984 PCr.LJ 1491. As for the quantum of sentence the learned counsel submitted that sudden flare/up could not be made the cause of awarding lesser sentence as the deceased was fired at much after the first incident that took place during the performance.
' Mr. Adam Khan'Jadoon, Advocate appearing for the State reiterated the arguments advanced by the learned counsel for the complainant.
' Since the F.I.R. In this case is based on the dying declaration the authenticity of which has been seriously challenged by the defence, it will be appropriate to examine the declaration first. The tenor of the case-law cited at the Bar is to the effect that great caution is to bes taken before reliance is placed off a dying declaration as it is made by an interested person and in the absence of the accused, and though a dying person is expected not to make a misstatement but cases are not uncommon when the dying man had made false declaration.
' These words of caution are rules of prudence and for proper dispensation of criminal justice must be adhered to. In the present caw, however, the factors which have given rise to this rule of prudence are to significant extent absent. The person who was present at the time of the dying declaration, namely, Khalid Mahmood was himself an eye-witness and, therefore, there was no need for manipulation of a dying declaration to be made the basis of the F.I.R. As the report could have been lodged by Khalid Mahmood. Additionally the complainant party had in their armour 2 injured eye-witnesses, Khadim Hussain and Waheed Akhtar who had also reached the hospital about the same time and who could also have made the report, which would have been of no lesser value. More significantly the deceased had no previous enmity with the accused party and only one man had been charged for firing which hit 4 persons, the possibility of false implication by the dying man was, therefore, minimal. It is in this background that the dying declaration in question is to be scrutinized. It is correct that neither the Investigating Officer nor the doctor had declared that Khan Afsar was in his senses at the time when the dying declaration was made. But from the absence of positive evidence to this effect no inference can be drawn to the contrary. No question was put by the defence counsel to the doctor that the injured Khan Afsar was not in his senses when he was being examined in the Civil Hospital at Haripur nor was the Investigating Officer cross-examined on this aspect. Rather the P.W. Arif Javed in cross-examination voluntarily stated that the injured was in senses. As a matter of fact no argument was also advanced at the Bar that the injuries sustained by Khan Afsar were of a nature as to render him speechless.
Therefore, in the absence of questioning by the defence in the cross-examination of the two material witnesses of the capability of the injured to speak, it must be accepted that he could speak. There is an apparent discrepancy between the statement of P.W. Dr. Shaukat Hussain, the Medical Officer at Civil Hospital, Haripur, and P.W. Arif Javed, A.S.-I. To the extent that the former had stated that the injured was brought by the A.S.-I. When he was already in the Emergency Room whereas the later claims that the injured was already in the hospital when he arrived. This inconsistency is not very material as in the confusion that follows when a dying victim of a crime is brought to the hospital the exact sequence of the event taking place therein cannot be expected to be followed by those involved in them.
' Furthermore, the discrepancies will not reflect upon the credibility of the dying declaration as admittedly it was neither made before, nor signed by, the doctor. Capital was being made by the defence out of the statement of P.W. Khalid Mahmood in cross-examination that he was allowed to go by the police after he had made the report. It is not clear from the line of cross-examination that the witness was made to understand that the question related to the F.I.R. The use of the word 'report' by Khalid Mahmood was not used in the sense of F.I.R. Being an eye-witness he may also have given information about the incident after the dying declaration was recorded. Khalid Mahmood had more than once in his statement confirmed that the dying declaration was made in his presence and that he had signed it. The objections to the dying declaration are, therefore, without substance. Since the dying declaration was made by the deceased soon after he was injured, in the presence of a Police Officer and an eye-witness, there is no reason to disbelieve it, particularly when there is total absence of previous enmity and reasons for false implication.
' Out of the four eye-witnesses of the occurrence three were examined by the prosecution, two of them injured. The narration of the occurrence by all the three witnesses appear to be materially similar and also consistent with the story set up in the F.I.R. The presence of the two injured eye- witnesses at the place of occurrence stands established by their injuries whereas the presence of P.W. Khalid Mahmood has been admitted by all the accused in their statements recorded under section 342, Cr.P.C. Wherein they have alleged that he had caused the injury to Akram Taj soon after the musical performance. Though Khalid Mahmood is related to Khan Afsar and P.W. Khadim Hussain was his servant and P.W. Abdul Waheed had no such relationship, none of the eyewitnesses were on inimical terms with the accused par_y. The attack on the veracity of the eye-witnesses was focussed by the defence on their failure to sufficiently describe the event, some inconsistencies and suppression of the actual happening. The narration of the event given by all the three witnesses in their examination-in-chief is consistent and sufficiently detailed. In the cross-examination P.W. Khalid Mahmood had admitted to pelting of stones at the accused party in self-defence. P.W. Abdul Waheed confirms this whereas P.W. Khadim Hussain denies the pelting of stones before the firing. From the combined reading of the testimony of the three witnesses it does appear that pelting of stones had taken place, either before, during or after the firing, but that is a matter to be discussed later when examining the plea of self-defence of the convict. For the present it is sufficient that such an immaterial inconsistency would not create doubt about the presence of the eye-witnesses at the scene of occurrence, which is otherwise well-established. All the three eye-witnesses were present at the scene of occurrence and had visited the crime. The truthfulness of their testimony is, therefore, free from doubt.
' The argument that the medical evidence is inconsistent with the site plan and the ocular testimony has no substance. According to the site plan, which was prepared at the instance of P.W.
Khalid Mahmood, the distance between point No,5, where the deceased was present at the time of firing, and point No,6 from where Muhammad Taj had fired his first shot, is given to be 5 paces. The medical evidence shows blackening on some injuries found on the person of the deceased. During the cross-examination of P.W. Khalid Mahmood he claimed that the distance between the two points was 2 to 3 paces. No further cross-examination was conducted on this aspect. It is understandable that an eyewitness may commit an error of one or 2 paces while fixing the points between the victim and the assailant when about 10 persons were involved in the quarrel in which stones were also pelted. Considering the fact that a shot gun, which has a long barrel, was used in the crime, viewed in the light of the above observations, the deceased was fired at, even according to the oral testimony, from a close range so as to cause blackening. Apart from this controversy the ocular testimony finds support from the medical evidence in that the use of shot gun is confirmed by the recovery of as many as 43 pellets from the bodies of the victims.
' The next question that requires resolution is existence or otherwise of light at the time of occurrence. It is true that no electric bulb was recovered by the Investigating Officer from the scene of occurrence, and it is equally correct that P.W. Khalid Mahmood had testified that there is no power connection in the village. P.W. Abdul Waheed stated that he identified the accused by the lights fixed for music function in the place where the buffalo was being slaughtered. It is the case of both the parties that the occurrence had taken place immediately after the musical performance.
All the accused in their statements under section 342, Cr.P.C. In response to the question as to why they were charged had alleged to have seen P.W. Khalid Mahmood attacking accused Muhammad Taj and in the same breath claimed that it was pitch dark a grave inconsistency. It is true that when crime takes place at night it becomes the burden of the prosecution to prove that there was sufficient light at the scene of occurrence for the witnesses to identify the accused. For this purpose the source of light, commonly the electric bulb, is produced in evidence. That is missing in the present case. But that in itself would not show the absence of light, if it could be proved from circumstances. The scene of occurrence of the present case was an open space where a musical group with dancing girls was performing before an audience of 300/400 people. It is unimaginable that the performance could take place in the darkness of night. There must have been arrangement for artificial light and it is common knowledge that even in those villages where there is no electric power artificial light is provided for such performances. Under Article 129 of the Qanun-e-Shahadat, 1984 the Court is entitled to presume existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. It can, therefore, be safely assumed that having regard to the common course of natural events the scene of occurrence must have been well-lit for the audience to see the performance.
' The recovery of the blood-stained plastic envelope, pieces of cloth and the matching of the blood stains thereon, as per report of the Chemical Examiner (Exh.P.W.10/5), with the blood, stains found on the apparels worn by the deceased at the time he was fired at is evident that the occurrence had taken place where alleged by the prosecution. It may, however, be clarified that the crime was committed in the place where the animals were being slaughtered for the marriage which was adjacent to the place of performance at a distance of 3/4 paces. The recovery of the shot gun at the potation of Muhammad Taj convict is of no avail to the prosecution as it was never sent to the Expert for examination.
The dying declaration, duly corroborated by the ocular testimony of three eye-witnesses, two of whom injured, and receiving further support from the medical evidence, recovery of blood-stained articles from the scene of occurrence, and the total absence of any reason for false implication, is sufficient to establish that the injuries received by the four victims were from the shots fired by Muhammad Taj.
' The plea of self-defence now needs evaluation. As stated above there is evidence, ocular as well as medical, that stone pelting had taken place between the two groups, and apparently from both sides. The question, therefore, is whether the pelting of stones by the complainant party would confer upon the accused the right to fire at them. From the judgments relied upon by the learned counsel for the convict it is clear that an accused may inflict graver injury on the victim than that inflicted by the former and yet would be entitled to the self-defence as he is not expected to weigh that assault in a golden scale in exercise of self-defence. The Supreme Court of Pakistan in Kala v.
State 1987 SCMR 385 have, however, laid down two essentials to prove the right of self-defence, firstly that it was other party who initiated fight and secondly, party taking plea of self-defence also suffered injuries at hand of other party first and then resort was taken to defend against aggressor.
It went on to add that when a right of private defence is set up, essence of case should be to ascertain as to who was aggressor and whether accused used more violence than was necessary.
The prosecution case throughout has been that the accused party was the aggressor. According to the eye-witness account the complainant party, had stopped by at the place where the animals were being slaughtered to give a helping hand when the accused who were annoyed by the previous incident, came over them and challenged them two or three times before the assault. This version rings a bell of truth when assessed in the light of other circumstances. In the earlier incident, which was the cause of crime, it was the accused party who were annoyed by complainant for having thrown the stone in the dancing area and which annoyance had not receded but could not be into action on account of intervention of the people who were watching the performance. When the people had disbursed and finding the complainant party alone the accused gave vent to their feelings by first challenging and then attacking to the complainant party. Even otherwise the complainant party could not have aggressed as Muhammad Taj convict was the only person amongst the two groups who was armed with a fire-arm. The evidence, therefore, shows that the convict were the aggressors and, therefore, if any stone pelting was done by the complainant party, due to which Muhammad Taj accused received injuries that could only have been in self-defence. Needless to add that use of fire-arm was totally disproportionate toIE the pelting of stone. The right of self-defence was, therefore, not available to the convict. Above discussion shows that the prosecution has been able to establish their case against convict Muhammad Taj beyond reasonable doubt and he has rightly been convicted and sentenced.
' As for the quantum of sentence is concerned no interference is justified. The crime was the result of a sudden flare up between the parties and there was no previous enmity between them. The ultimate incident where the complainant party was fired at cannot be detached from the flare up following the throwing of the stones during the performance.
' As it has been found that it was Muhammad Taj and his group which was the aggressor Khalid Mahmood cannot be found guilty for causing injury to Akram Taj in the cross-case. The criminal revision against acquittal of Khalid Mahmood, therefore, must fail.
' However, the direction that all the sentences shall run consecutively is not warranted in law and requires reversal. The Supreme Court of Pakistan in Javed Sheikh v. State referred to above, while interpreting section 35 of the Criminal Procedure Code, which puts a limit on the maximum aggregate punishment of imprisonment, held that sentences of imprisonment for different offences tried jointly ordered to run consecutively cannot exceed imprisonment for life, i,e, 25 years under section 57 of the Pakistan Penal Code. In case the sentences exceed the limit, they are to be ordered to run concurrently so that the imprisonment does not extend beyond imprisonment for life. This also is the ratio of the judgment of the Sindh High Court in Mst. Nazan v. State referred to above the judgment. The order of the trial Judge is, therefore, modified to the extent that the sentences imposed under the various sections of law are to run concurrently. With this modification Criminal Appeal No,12 Of 1993 is dismissed.
' Criminal Revision No,13 of 1993 and Criminal Revision No,5 of 1993 for reasons abovementioned are also dismissed.
' In the light of the provisions of section 429, Cr.P.C. The above shall be the judgment and order of the Court in the said criminal matters.
(Sd)
Nasir-ul-Mulk, J.
' MEHBUB ALI KHAN, J.--- Appellant Muhammad Taj alias Kala along with five others accused persons faced prosecution before Sessions Judge, Haripur in a case registered under section 302/324/148/149, P.P.C. With allegations, that the appellant and the co-accused on 11-7-1991 at 13-15 a.m. While armed with deadly weapons formed an unlawful assembly and in the prosecution of a Common object committed murder of Khan Afsar and made attempts on the lives of P.Ws.
Khadam Hussain, Muhammad Rafique and Wahid Akhtar by firing at them effectively. The event had taken place in the limits of Village Laddha in Haripur Tehsil. The prosecution case was initiated on the report of the deceased-complainant named Khan Afsar lodged at Civil Hospital, Haripur in the Emergency Ward. The appellant on the conclusion of trial was found guilty and convicted on the charge under section 302, P.P.C. Read with section 324, P.P.C. (as substituted by Qisas and Diyat Ordinance) and sentenced as under by the learned Judge vide the judgment and order impugned, dated 31-1-1993:
(a) To suffer a sentence of life with fine of Rs,50,000 which if paid was to be delivered to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
(b) Ten years' rigorous, imprisonment for causing fire shot injuries to P.W. Khadim Hussain with fine of Rs,1,000 and six months' R.I. In default. The appellant has been also directed to make payment of Rs,10,000 to Khadim Hussain as compensation in the form of 'Daman'.
(b) Ten years' rigorous imprisonment with fine of Rs,1,000 or six months' R.I. In default for causing fire-arm injuries to P.W. Wahid Akhtar with a direction to make further payment of Rs,10,000 to Wahid Akhtar as 'Daman'.
(d) Ten years' rigorous imprisonment with fine of Rs,1,000 or six months' R.I. In default for causing fire-arm injuries to P.W. Muhammad Rafique with further direction to make payment of Rs,10,000 as compensation to the injured person in the form of 'Daman'
' The co-accused, namely Akram Taj, Nazim Zia, Amjad Parvez, Sultan Afsar and Abdur Rehman alias Maan were acquitted of the charge by the learned Sessions Judge by the same judgment and order.
2. The prosecution case as disclosed by Khan Afsar deceased (the injured) in his own report (Exh.P.A.) lodged with P.W. Arif Jawaid Khan, A.S.-I. Would indicate, that Khan Afsar accompanied by Khalid Mehmood, Farman Ilahi and a servant, namely, Khalid Hussain on the eventful night had gone to Village Laddha from Akbar Abad to attend a musical concert arranged on the marriage of Arshad and Farooq sons of Malik Muzaffar. The musical programme had been started by the singing girls and everybody was delighting in when in the meanwhile someone threw a stone into the gathering. This caused annoyance to appellant Muhammad Taj who was present in the function armed with a .12 bore D.B. Shot gun and he started giving abuses to Khan Afsar deceased and his companions. The matter for the time being was although patched up, but at 3-15 a.m.
When the concert ended accused Muhammad Taj, his brother Akram Taj and few friends, namely, Sultan Muhammad, Abdur Rehman alias Maan, Nazim Zia and Amjad Perwaiz attacked the deceased and his associates. Appellant Muhammad Taj started indiscriminate firing with a D.B. .12 bore shot gun and injured Khan Afsar deceased, his servant Khadam Hussain and P.Ws. Wahid Akhtar, Muhammad Rafique. The appellant after the firing decamped from the spot alongwith the acquitted accused. Khan Afsar in injured condition was forthwith taken to the Emergency Ward at Civil Hospital, Haripur and after the recording of his report by A.S.-1. Arif Javed at 4-30 a.m. He was shifted to D.H.Q. Hospital, Abbottabad for further treatment. The case was initially registered under sections 324, 147, 148 and 149, P.P.C. Which was subsequently, changed into sections 302, 147, 148 and 149, P.P.C. On the death of Khan Afsar. On the same day a counter-report was also registered at the instance of accused Akram Taj (Exh.P.W/D-1) on the injuries received by him and appellant Muhammad Taj allegedly in that very transaction by the hands of Khan Afsar deceased and P.W.
Muhammad Khalid.
3. Dr. Shaukat Hussain (P.W.6) on the same day at 5-15 a.m. Examined Khan Afsar then alive and found the following:--
(1) Fire-arm entry wound at hypogastrium 2" x 2-1/2" with blackening of edges. Internal viscera injured and visible from the wound.
(2) Six independent fire-arm entry wounds 0.1" x 0.2" on the left side of wound No,1 over the abdomen.
(3) Fire-arm wound with blackening of edges on the ventral surface or right wrist-joint. Bone fractured.
(4) 18 to 20 fire-arm entry wounds on the interior and medial surface of left forearm and elbow with blackening of edges on many wounds.
' The same doctor also examined P.Ws. Khadim Hussain, Muhammad Rafique and Wahid Akhtar immediately after that and found the following injuries:-- padim Hussain:
(1) One fire-arm entry wound 0.1" x 0.1" in diameter on left side lower of abdomen.
(2) One fire-arm entry wound on the middle finger right hand. Muhammad Rafique:
(1) One fire-arm entry wound on the outer side of left fore-arm 0.1" in diameter.
(2) One fire-arm entry wound on the face below left eye 0.2" x 0.1" in diameter.
Waheed Akhtar:
(1) One fire-arm entry wound on lower abdomen with blackening of edges 0.2" x 0.2" in diameter.
(2) One fire-arm entry wound on the front of scrotum with swelling 0.1" x 0.2" in diameter.
(3) Seven separate fire-arm entry wounds on the front of left thigh with blackening of edges in few 0.2" x 0.2" in diameter.
(4) Three fire-arm entry wounds 0.2" x 0.2" in diameter on the front of right thigh with blackening of edges. Dr. Shaukat Hussain at 7-30 a.m. On the same day examined the acquitted accused, namely, Akram Taj and found the following injuries:--
(1) One lacerated wound 1" long on the vertex bone deep. Bleeding present. Conscious.
(2) Bruise over the back.
(3) Superficial skin deep lacerated wound over the left forearm. Weapon used blunt.
4. P.W. Arif Jawaid, A.S.-I. Who is author of the report Exh.P.A. Has categorically stated, that Khan Afsar was fully conscious when he wrote his report (now dying statement) in the Emergency Ward at Civil Hospital, Haripur and despite quite lengthy cross-examination nothing could be brought forth from the mouth of the witness that the deceased then injured did not have command of senses or talk coherently when his report was recorded by the A.S.-I. At 4-30 a.m. On 11-7-1991.
Similarly, Dr. Shaukat Hussain has nowhere also mentioned that when he examined Khan Afsar in the hospital at 5-15 a.m. He was not in senses. The learned trial Judge, therefore, by believing the correctness of the dying statement and evidence of two injured persons found appellant guilty on the charge of murder of Khan Afsar deceased and causing fire-arm injuries to P.Ws. Khadim Hussain, Wahid Akhtar and Muhammad Rafique recorded against him the impugned conviction and sentence while acquitting the co-accused on benefit of doubt. I had the privilege of reading separate judgment recorded in this case by my learned brother Judge, but I may not be able to agree with him for my own conclusion drawn in the appeal case for the reasons that follow.
5. Admittedly, the incident had taken place in a musical concert at night time attended by a crowd including the deceased, his companions and appellant Muhammad Taj along with the acquitted accused. The parties had no enmity before this event and because of an altercation which had taken place some time before the occurrence between appellant and Khan Afsar deceased over the throwing of a stone by somebody into the gathering, and soon the function was over appellant and the co-accused again re-initiated the quarrel and Muhammad Taj with his D.B. Shot gun fired indiscriminately on the deceased and his fellow friends. Khan Afsar having been seriously injured was hurriedly taken to the Emergency Ward at Civil Hospital, Haripur where at 4-30 a.m., i,e, within 75 minutes he lodged the report Exh.P.A. Before Arif Jawaid, A.S.-I. Keeping in view the distance of 13/14 Kms. Of the venue wherefrom Khan Afsar in injured I condition was transported to the hospital at Haripur this can be said a very promptly lodged report the event having taken place at 3-15 a.m.
A perusal of the report (Exh.P.A.) would indicate that it was Muhammad Taj appellant who had been also charged by the deceased for firing effectively with a D.B. .12 bore shot gun at him and P.Ws. Khadim Hussain, Muhammad Rafique and Wahid Akhtar. The co-accused are although mentioned in the report but they have not been given any overt act. This cannot be, therefore, said that the dying statement has been disbelieved against the acquitted accused at the trial stage.
Evidence of A.S.-I. Who is author of this report would show that Khan Afsar was in complete senses when he recorded his report at 4-30 a.m. There is also no evidence from, the mouth of Dr. Shaukat Hussain that when he examined Khan Afsar at 5-15 a.m. He had no senses. We can, therefore, safely conclude that Khan Afsar in full command of senses made report of the occurrence at 4-30 a.m. Three persons in addition to the deceased had been injured with the appellant's firing and were available in the hospital at that very time. If Khan Afsar had not been in senses any of the injured person being equally important witness could have easily lodged a report before the Police Officer. Similarly, we cannot lightly ignore the statements made by P.Ws. Wahid Akhtar and Khadam Hussain who had the haul-marks of fire shot injuries on their persons. They have unanimously charged the appellant for firing at them and the deceased. Wahid Akhtar, Khadam Hussain and Muhammad Rafique got themselves wounded when the appellant started firing recklessly at Khan Afsar and his companions. This is pertinent to note that two of the injured persons, namely, Wahid Akhtar and Muhammad Rafique did not accompany deceased Khan Afsar from Akbar Abad for Village Laddha where the musical programmer was arranged. P.Ws. Khadam Hussain and Khalid Mehmood had gone with the deceased from Akbar Abad and were present with him in the musical concert at the relevant time. Khalid Mehmood has been also examined before the trial Court. He has not only corroborated the contents of the dying statement on all material particulars but also the happening of the event in the manner as disclosed in the report.
There might be some discrepancies in these statements but the witnesses (including two injured persons) being unanimous on all major points at issue are to be believed and particularly when we see that they had no axe of their own to grind against the appellant. The presence of light on the spot at the relevant time cannot be ignored for the simple reasons that we cannot presume the holding of a musical concert at night without light in a marriage ceremony arranged in a village which is provided with electricity. It is rather mentioned in the very dying statement that lights were on when the firing incident took place. This is true that one D.B. .12 bore shot gun licensed in the name of Muslim Taj (brother of the appellant) was recovered during investigation from a deserted house which the police did not send for chemical analysis but this factum alone would not be sufficient for drawing a conclusion that the appellant did not at all use any gun at the relevant time or to record a judgment of acquittal of the accused on this count by brushing aside all that material prosecution evidence consisting of not only a dying statement which rings true but also of ocular testimony of two injured and one Other man mentioned in the report particularly when we find the existence of no enmity between the parties before this happening.
6. The factum of fire-shot injuries received by Khan Afsar deceased and three other persons is not only supported by the medico-legal evidence of Dr. Shaukat Hussain but also by the testimony of two injured witnesses produced in evidence, namely, Khadam Hussain and Wahid Akhtar. The truthfulness of the dying statement has been proved beyond any reasonable doubt that Khan Afsar then injured had himself lodged this report before P.W. Arif Jawaid, A.S.-I. In the Emergency Ward at Civil Hospital, Haripur within 75 minutes of the happening. The deceased singally charged appellant Muhammad Taj of effective fire-shots on himself and three injured persons. P.Ws.
Khadam Hussain and Abdul Wahid while giving evidence of the case before the trial Court have almost narrated the same story as disclosed by the deceased and corroborated the dying statement on all material particulars. There may be certain minor discrepancies in these statements but the total prosecution case cannot be rejected for these small variations in evidence, if any, as we know that witnesses are not expected to give evidence of photographic description and if we adjudge as a whole their testimony in the context of the circumstances in which this event took place in the absence of any enmity between the parties we find it ringing true. The deceased as the post-mortem report indicates had also received certain wounds through blunt object but the cause of his death in the opinion of the doctor was multiple fire-arm injuries leading to excessive hemorrhage, loss of blood and rupture of urinary bladder. The doctor has categorically stated that the death of Khan Afsar had occurred at 7-15 a.m. On 11-7-1991 while the dying statement of the deceased was recorded by A.S.-I. Arif Jawaid in the hospital at 4-30 a.m. This is true that there is no mention of injuries caused to Khan Afsar by blunt object in the report but in that state of affair a dying man could only be mindful of the major injuries received through fire-shots which the deceased duly mentioned in the report, so much so, that even the doctor who initially examined Khan Afsar then alive and gave him first aid did not mention of any injury caused by blunt object which could be received during a scuffle that might had taken place in a like situation. The acquitted accused, namely, Akram Taj who happens to be a brother of the appellant had also received one lacerated wound 1" long on the vertex bone deep, a bruise over the back and a superficial skin deep lacerated wound over the left forearm caused with blunt object and similarly such type of injuries could be caused to the accused during the quarrel by any person present on the occasion. A counter-report was although lodged by Akram Taj against P.W.
Khalid Mahmood and Khan Afsar deceased for these injuries but in vain.
7. Appellant Muhammad Taj in his own statement recorded under section 342, Cr.P.C. Has frankly admitted of the throwing of a stone by someone into the gathering when the musical concert was at peak followed by an altercation between the appellant, the deceased and their fellow friends but the matter was patched up for the time being. According to his explanation Khan Afsar deceased and the injured persons had afterwards received fire-shot injuribs from the firing of somebody from the crowd. He did not at the same time deny his own attendance of the musical concert or that of the deceased along with the injured P.Ws. In the absence of any previous enmity at the background in which this happening had taken place during a musical concert, we can safely accept the truthfulness of the dying statement and the ocular evidence borne by two injured and one other witness (named in the report) and state with full judicial certainty that the prosecution have successfully brought home guilt of appellant Muhammad Taj on this charge beyond any reasonable doubt and he has been rightly convicted and sentenced by the learned trial Judge by recording the impugned judgment and order which we shall maintain.
8. The case of the co-accused having been on quite different footing the evidence relating to them has been correctly sifted and it cannot be argued by any standard of prudence that as the co- accused have obtained their acquittal in the case the same treatment may be meted out to the appellant. The sentence of imprisonment and fine inflicted upon the appellant look quite appropriate in the circumstances of the case and resultantly the Criminal Revision Petition No,13 of 1993 lodged by Abdul Jabbar for the enhancement of these sentences shall be rejected. Similarly, the Criminal Revision No,5 of 1993 filed by accused Akram Taj against the acquittal of P.W. Khalid Mahmood in his counter-case by the learned Sessions Judge should be also rejected.
9. As I have developed a difference of opinion in my judgment with my learned brother Judge, this would be as such advisable that the matter is placed before his Lordship the Chief Justice for placing this case before a third Judge.
(Sd.)
Mehbub Ali Khan, J.
' JAWAID NAWAZ KHAN GANDAPUR, J.--- Muhammad Taj alias Kala, (2) Akram Taj, (3) Nazim Zia, (4)
Amjed Parvez, (5) Sultan Afsar and (6) Abdur Rehman alias Maan were tried, jointly, for having committed offences punishable under section 302/324/148, P.P.C. Read with section 149, P.P.C. All of them were alleged to have formed an unlawful assembly, on 11-7-1991 at 3-15 a.m., and while armed with lethal weapons, committed rioting and attempted at the lives of Khadam Hussain, Muhammad Rafique and Wahid Akhtar (P.Ws.) and in the process also killed Khan Afsar (deceased-complainant), by firing at them effectively with a shot gun, in furtherance of their common object. The occurrence is alleged to have taken place in the land owned by one Ghulam Muhammad situated within the limits of Village'Laddha, Tehsil Haripur, District Haripur.
2. At the conclusion of the trial the learned Sessions Judge, Haripur found Muhammad Taj guilty of murdering Khan Afsar and attempting at the lives of the aforesaid P.Ws. He, by his judgment, dated 31-1-1993, convicted him under section 302, P.P.C. And sentenced him to undergo life imprisonment and to pay Rs,50,000. As compensation, to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to undergo further R.I. For 6 months. He also convicted him under section 324, P.P.C. For causing fire-arm injuries to P.Ws. (Khadam Hussain, Waheed Akhtar and Muhammad Rafique) as under:-- "(i) For causing injuries to Khadim Hussain he shall suffer rigorous imprisonment for ten years and also pay a fine of Rs,1,000 or in default of payment of fine he shall suffer rigorous imprisonment for a further period of six months. He shall also piy Rs,10,000 to Khadim Hussain injured P.W. As compensation in the form of Daman:
(ii) For causing injuries to Wahid Akhtar he shall suffer rigorous imprisonment for ten years and also pay a fine of Rs,1,000 or in default of payment of fine he shall suffer rigorous imprisonment for a further period of six months. He shall also pay Rs,10,000 to Wahid Akhtar injured P.W. As compensation in the form of Daman.
(iii) For causing injuries to Muhammad Rafique he shall suffer rigorous imprisonment for ten years and also pay a fine of Rs,1,000 or in default of payment of fine he shall suffer rigorous imprisonment for a further period of six months. He shall also pay Rs,10,000 to Muhammad Rafique injured P.W. As compensation in the form of Daman."
3. The Sessions Judge directed that all the sentences shall run consecutively. He, however, acquitted the other five accused of all the offences charged with.
4. Appellant Muhammad Taj has filed the present appeal for the redress of his grievance and has challenged the validity/legality of the judgment of the Sessions Judge vide which he has been convicted/sentenced as stated above.
5. Briefly stated, the facts of the case in hand are that from the scene of occurrence, Khan Afsar deceased then injured, was removed and taken to Civil Hospital, Haripur, where, on his arrival at 4- 30 a.m. On the very day, he made a report to A.S.-I., Arif Javed (P.W.5), who was on "Gasht" and on receipt of the information about the incident, had rushed there. In the F.I.R., he stated that on the night of occurrence he had gone to attend the "musical function" arranged in connection with the marriage ceremony of Irshad and Farooq, sons of Malik Muzaffar Khan, in the land of one Ghulam Muhammad, along with Khalid Mahmood (P.W.7), Farman Ilahi and Khadim Hussain (P.W.9) his personal servant, at 11 p.m., that all the people, present there, were watching the function, while lights were on, that someone, in the meantime, hurled a stone on the singers with the result that Muhammad Taj, convict, abused the complainant party. The matter was, however, patched up.
After the function ended, at 3-15 a.m. Accused Muhammad Taj who was then armed with a shot gun, and his other companions. (five in number) attacked the deceased and started firing at him as a result of which he, himself, Khadim Hussain (P.W.9), Waheed (P.W.8) and Muhammad Rafique were injured. The occurrence was alleged to have been witnessed by Khalid Mahmood (P.W.7) and other persons present on the spot.
6. The motive set up was an altercation between the parties which took place as a result of pelting of stones at the musical function. This, in short, is the version offered by the deceased, which was recorded in the form of a Murasila.
7. After scribing the Murasila, the A.S.-I. (P.W.5) sent the same to Police Station Kot Najibullah, where a case was registered on its basis against the convict appellant and his aforementioned 5 companions, by M.H.C., Muhammad Siddique (P.W.1). The A.S.-I. (P.W.5) prepared the injury-sheet of the deceased, then injured, and got him medically examined by Dr. Shaukat Hussain (P.W.6) at 5-15 a.m. On 11-7-1991. He also prepared the injury-sheets of Khadim Hussain (P.W.9), Muhammad Rafique, Abdul Waheed (P.W.8) in the shape of Exh.P.W.5/2 to Exh.P.W.5/4 respectively. Since the deceased was in shock and serious condition, he was referred to D.H.Q. Hospital, Abbottabad, where he died at 7-30 a.m. And, therefore, autopsy was conducted on his dead body at 8-10 a.m., on the same day, by Dr. Nayar Bashir (whose handwriting is proved by Dr. Abdul Nasir (P.W.11), on the identification of Ghulab Khan (P.W.2). The said Doctor handed over shirt (Exh.P.1), Shalwar (Exh.P.2) and Chadar (Exh.P.3) of the deceased to F.C. Khan Waiz, who handed over the same to A.S.-I., Abdur Rashid (P.W.4), who took the same into his possession and made them into a parcel.
The F.C. Also brought phial (Exh.P.4), containing pellets and card board, from the doctor and handed over the same to S.-I., Muhammad Jamshed Khan (P.W.10). The S.-I. Inspected the spot and recovered a blood-stained plastic envelope (Exh.P.7), blood-stained pieces of clothes (Exh.P.8) and cuff of a shirt (Exh.P.9). He raided the house of Muhammad Taj and recovered some photographs.
He took into his possession a stick (Exh.P.6) produced by accused Abdur Rehman from his house.
8. This convict-appellant Muhammad Taj was arrested by a Head Constable while all the other accused were apprehended by the S.-I. In the meantime the site plan Exh.P.W.5/8 was prepared and statements of some witnesses were recorded by A.S.-I., Arif Javed (P.W.5). Subsequently, it may be mentioned here, a gun was recovered from a deserted house by A.S.-I. But it was neither sealed nor sent to an Arms Expert. However, blood-stained articles were sent to a Chemical Examiner whose report is Exh.P.W.10/5.
9. After the completion of the investigation the local police submitted a charge-sheet under section 302/324/148/149, P.P.C. Against the convict appellant and his five companions (since acquitted) in the Court of Illaqa Magistrate who, in turn, sent the same to the Sessions Court, Haripur for trial. The convict appellant denied the charge, repudiated the prosecution allegations and dubbed the complainant party as aggressors, against whom a cross-case under section 324/34, P.P.C. Was duly registered, on account of having injured Akram Taj, brother of the appellant, at the hands of the deceased and Khalid Mahmood (P.W.7) with an axe and stick.
10. The prosecution, to establish its case, produced as many as 12 witnesses mostly mentioned above. The Sessions Judge after considering the evidence so produced and having heard the learned counsel for the parties, acquitted 5 accused, named above, but convicted, on the basis of the same evidence, and sentenced Muhammad Taj accused-appellant on two-fold charges under section 302/34, P.P.C., as stated in the beginning. Hence this appeal.
11. The crux of the arguments of the learned counsel for the appellant is:--
(i) that the dying declaration of Khan Afsar is a suspect document and it has offered a tvlisted and distorted version of the occurrence and has falsely implicated as many as six persons (5 since acquitted), besides suppressing his own role and that of Khalid Mehmood (P.W.7);
(ii) that the version given by each eye-witness is at variance with the other, thus each of them stand contradicted by the other, thereby destroying the story as given by the dying man;
(iii) that the testimony of the eye-witnesses is not only contradicted by the site plan but is also falsified by the medical evidence in its essential features and details of the prosecution case;
(iv) that being a night occurrence, the witnesses, although injured, could not observe the events properly, as they have failed to account for the injuries caused to Akram Taj. This circumstance seriously damages their credibility, especially when 5 persons have earned acquittal oil the basis of their evidence.
12. In view of the contentions of the learned counsel for the appellant, I am constrained to subject the entire evidence available on record to close and critical examination and analysis.
13. While dealing with the first point, I came across a very vital fact that the time of recording report in Emergency Ward, Civil Hospital, is put at 4-30 a.m. When A.S.-I., Arif Javed (P.W.5) arrived there, but, according to Khalid Mahmood (P.W.7), the Medical Officer had given first aid treatment to the deceased before the arrival of the A.S.-I. (P.W.5). The evidence of Dr. Shaukat Hussain (P.W.6) discloses that he medically examined the deceased at 5-15 a.m. And that after giving him first aid referred him to D.H.Q., Hospital. If all the statements are brought face to face with each other, the report seems to have been written after 5-15 a.m. And not before and that, therefore, the time of report has been wrongly mentioned in the Murasila. It is worth noticing that nowhere in the Murasila it has been recorded that the deceased was in his senses. A.S.-I., Arif Javed (P.W.5) has admitted that at the time of recording the report, the Medical Officer as well as some of the relatives of the deceased were present but he did not obtain the signatures of the Medical Officer on the report for attestation. Needless to mention that the dying statement was recorded in the presence of the Medical Officer and other hospital staff but their signatures were not obtained on the same. No explanation is forthcoming in this respect as to why this was not done in the circumstances of this case. The doctor has nowhere admitted his presence at the time of recording the statement and this is so because he (the Medical Officer) had not agreed to share the responsibility by attesting the statement which did not come from the mouth of the deceased but was recorded by the A.S.-I.
At the instance of the attendants of the deceased. This circumstance has cast a serious doubt on the genuineness of the dying statement allegedly made by the deceased.
14. The doubt expressed above is fortified by the very admission of Khalid Mahmood (P.W.7), cousin of the deceased, at page 53 of the print book, wherein he stated:-- "I do not remember whether the Medical Officer was present at the time of report or not. However. I was present at that time. None from our village was present at the time of report. After recording my report the local police let me free and I took the deceased to D.H.Q. Hospital, Abbottabad. On the same day at about 7 or 7-15 a.m. The deceased succumbed to his injuries. The deceased did not disclose anything regarding the occurrence to any person of the village from the spot to D.H.Q.
Hospital, Abbottabad. As the doctor did not inquire from him about the occurrence so he did not disclose anything to him."
15. This statement, coming as it does, from the first cousin of the deceased, puts the matter beyond a shadow of doubt that the deceased was not in his senses and was not capable of making a statement and that, in fact, the report was made by Khalid Mahmood (P.W.7). Even Dr. Shaukat Hussain (P.W.6) has admitted that the deceased was in shock and was serious and that he did not record his statement. He would have surely given a certificate of fitness if the so-called, dying statement was in fact recorded in his presence. Failure to secure any certificate, as stated above, and keeping in view the evidence of Khalid Mahmood (P.W.7), reproduced earlier, creates a further dent and doubt about the capacity of the deceased to make a coherent and detailed statement, as has been attributed to him, in view of the seriousness of the injuries resulting in his immediate death thereafter.
16. It is also in the evidence of Dr. Shaukat Hussain (P.W.6) that Akram Taj was brought to him in injured condition in Civil Hospital at 5-00 a.m. And that he examined him medically at 7-30 a.m.
And found lacerated wound 1" long on the votex, bone deep with presence of bleeding besides other two injuries. He admitted that this injured person was brought to the hospital by A.S.-I., Arif Javed (P.W.5). It is also admitted by S.-I. Jamshed Khan (P.W.10) that on the report of Akram Taj, accused, a case vide F.I.R. No,105 was registered on the same day against the deceased and Khalid Mahmood (P.W.7) and that in that case he prepared the site plan and recorded the statements of Muhammad Taj (appellant), Gulab and Shaukat as eye-witnesses. He further stated that, at long last, he submitted a charge-sheet under section 324/34, P.P.C. Against the deceased and Khalid Mahmood (P.W.7).
17. The injuries sustained by Akram Taj tally with the time of occurrence. The deceased and his witnesses have failed to mention about the factum of injuries sustained by Akram Taj nor have they furnished any explanation for the same. The suppression on their part erodes their credibility and also goes against the veracity of the details and manner of attack as mentioned in the alleged dying statement. The deceased, in the F.I.R., has charged the acquitted accused (5 in number) for assaulting him. He, however, failed to mention with what weapon did they attack him and what injuries were caused to his person by them. It will not be out of place to mention here that the deceased has also sustained injuries with blunt weapon as is clear from the post-mortem report and the statement of the doctor performing autopsy on him. He has not explained, in his report, how those were caused and by whom and by which sort of weapon. He had not been able to identify his assailants due to darkness. This circumstance seriously affects his veracity in view of the authorities reported as under:--
(1) Ghazi and others v. The State 1982 SCMR 49: Penal Code (XLV of 1860)- ----Section 302/34---(Murder case)---Appreciation of evidence---Strong enmity existed between parties---Eye-witnesses very close relations of deceased--Witness of alleged recoveries of incriminating article brother-in-law of complainant and marrying widow of deceased after incident,--Medical evidence revealing one blunt injury on person of deceased but prosecution not attributing any such injury to appellants---Witnesses allegedly unable to see with what weapons and in what manner deceased received injuries, veracity of witness as such with regard to complicity and identity of appellants rendered doubtful and reasonable doubt may arise about their very presence at time of occurrence---One of appellants found to have had gunshot injury at time of his arrest and such injury not explained---Incriminating articles sent to experts after great delay and their reports received after several years---Station House Officer not in a position to state condition of articles when sent to experts for examination---Held, highly unsafe in circumstances to rely upon opinion of experts---Evidence of recoveries being ruled out of consideration prosecution evidence left to support case consisting only of interested and inimical ocular testimony which could not serve as safe foundation for sustaining guilt of appellants."
(2) Abdul Ghafoor v. The State 1982 SCMR 162: Penal Code (XLV of 1860)--- ----Section 302/109---(Murder case)---Appreciation of evidence---Appellant accused and acquitted accused alleged to have fired many shots with their weapons but only one bullet injury noticed on deceased and such shot attributed to rifle fired by appellant---Such allegation an obvious lie inasmuch as other shots could not prove ineffective from such a close range as alleged nor could have not left any pellet mark or bullet mark on door or wall of house---Wholly unnatural to accept deceased's companion having escaped shots if either together with or a few paces behind deceased---Other two injuries on deceased remaining unexplained---No reference to such injuries made in F.I.R. Or in statements of prosecution witnesses----Some injuries noticed by Inspector Police as mentioned in inquest report not noticed by Doctor---Indulgence in exaggerating number of injuries appearing to be to make it consistent with number of shots allegedly fired----Difference of opinion also existing as to weapon secured from appellant--- Presence of pellets and wads numbering 5 each not explained---Deceased appearing to have gone out alone to empty his bladder in darkness of morning hours and shot at by someone without being identified by any of prosecution witness---Evidence of prosecution witness held to be tainted and not believable and lower Court in regard to acquitted accused but appellant's case not distinguishable from cases of acquitted accused---Appellant in circumstances, held, entitled to benefit of doubt and acquittal . "
' So, from whichever angle, the dying declaration is judged, it is highly unreliable I and is a tainted document and, therefore, cannot be relied upon safely.
18. Next thing to be considered is the background and the manner of attack at put forth by the deceased and the supporting witnesses i,e,, Khalid Mahmood (P.W.7), Wahid Akhtar (P.W.8) and Khadim Hussain (P.W.9). The deceased in his report, inter alia, stated that while the people were enjoying the musical programmer, some one pelted stones upon which Muhammad Taj, armed with .12 bore shot gun, abused them. However, the matter was averted for the time being. But after the close of the function, at 3-15 a.m., appellant Muhammad Taj and his companions five in number (since acquitted) set upon him and Muhammad Taj, started firing and injuring him on various parts of his person and also wounded Khadim Hussain (P.W.9), Abdul Waheed (P.W.8) and Muhammad Rafique. He has not ascribed any weapon to the accused other than Muhammad Taj nor has he stated that he was injured at their hands. On the other hand, Khalid Mahmood (P.W.7) says that on the expiry of function, he along with the deceased and his companions, started for their respective homes, that on the way they stopped at a place where a buffalo had been slaughtered by Malik Muzaffar etc. In the meantime, appellant Muhammad Taj and the other accused (since acquitted) came there and while passing twice or thrice, challenged the deceased to face them. Thereafter, all the accused attacked them and Muhammad Taj fired two shots, injuring the deceased, Khadim Hussain, Waheed and Muhammad Rafique.
(b) In cross-examination, this witness, stated (page 51 of the print book) that first of all Muhammad Taj abused us and thereafter, his companions grappled with us due to which we sustained injuries with "Dandas" while he himself received two injuries with Dandas. According to him, Khan Afsar, deceased, was fired upon by the appellant twice. The first shot hit the deceased in the belly but he did not fall down on the ground whereas ehe second shot, fired simultaneously, hit the deceased on the arm and the left side of the chest, when he was still standing.
(c) This witness is, however, contradicted by Khadim Hussain (P.W.9) who, in his cross-examination (at page 60 of the print book), stated that the first shot of the accused hit the deceased in the belly and he fell down on his back, that the second shot was fired when the deceased was lying on the ground. If this was so, other persons could not have been hit the second shot because the barrel of the gun was towards the ground on which the deceased was lying. This is inconsistcnt with the medical evidence. Strangely Khalid Mahmood (P.W.7) has not been medically examined. His version of grappling, attack with "Dandas" does not support the manner of attack as disclosed by the deceased in his report or by P.W.8 and P.W.9. It is to be remembered that the venue of attack, according to the report; is the place where the musical function was held whereas according to Khalid Mahmood (P.W.7), it is somewhere else.
19. Nontheless, Abdul Waheed (P.W.8) has still a different tale to tell. In his examination-in-chief, he says that after the close of the musical function, he alongwith the deceased and the injured witnesses started for their village when in the meanwhile all the accused came after them and attacked the deceased and Khalid Mahmood (P.W.7). Muhammad Taj, accused, fired two shots with a shot gun as a result of which the deceased, he himself, Khadim Hussain and Muhammad Rafique sustained injuries.
(b) In cross-examination, he testifies that before the firing both the parties started pelting stones at each other and after that the firing started (page 56 of the print book). This origin and manner of attack is quite inconsistent with the version given in the report and that offered by Khalid Mahmood
20. Khadim Hussain (P.W.9), in his examination-in-chief, says that at 3-30 a.m. The deceased, in his company, started from the place where the musical function was held and reached a field belonging to one Ghulam Muhammad (where cattle are slaughtered) and all the accused came there and Muhammad Taj accused came in front and fired two shots, resulting in injuries to himself, the deceased, Waheed and Muhammad Rafique. He does not charge the accused for pelting stones, using Dandas or grappling with any member of the complainant party.
21. None of these two eye-witnesses explain how and in what manner and at whose hands the deceased has sustained injuries with blunt weapon. This witness (P.W.9) categorically stated that no stone pelting took place before firing. He, however, tells that the first shot hit the deceased in the belly and he fell down and the second shot hit him while he lay on the ground. If this version is taken to be correct then the barrel of the gun, down below, could not have hit other injured witnesses. It will be seen that each witness has offered a different story regarding the one and the same incident, which by no means is reconcilable with each other or the version given by the deceased-complainant in his dying statement. Thus, every one stands contradicted by the other.
Naturally the benefit of such glaring contradictions and discrepancies would go to the accused.
22. Tho catalogue of different versions does not end here. A perusal of site plan Exh.P.W.5/8 would show that the deceased and other witnesses sustained injuries from a distance of 9 paces (22 feet). On the other hand, pattern of injuries found on the dead body of the deceased and some of the injured witnesses show "blackening". It is a matter of common judicial experience that "blackening", with a shot gun, is caused only if the shot is fired from a distances of 6 or 7 feet. If a pistol is used, then a shot fired from 2 to 6 inches cause blackening. The witnesses, in order to bring their evidence in line with the medical testimony, have shown shorter distances. This attempt of improvement cannot succeed when site plan, prepared at their pointation, indicates longer distances, excluding all chances of blackening.
23. The manner in which the two shots were fired at the deceased, narrated by Waheed (P.W.8) and Khadim Hussain (P.W.9), is not at all compatible either with the medical testimony or with the pattern of injuries sustained by the injured witnesses. The deceased had sustained injuries with blunt weapon also but there is nothing on the file to show as to how and by whom these were caused to him. This makes the case of the prosecution highly doubtful. It may be noted that there is direct conflict between the ocular evidence and the medical testimony. Dr. Shaukat Hussain (P.W.6) is unable to show if injury No,1 to deceased is caused by a blunt or a pellet (page 18 of the book).
There is no doubt that missiles were extracted by the doctor during the course of autopsy but the same were never sent to an Arms Expert to find out and verify their type of caliber. The prosecution has equally failed to explain as to why the gun recovered in the case was not sent to an expert to ascertain if the pellets, allegedly extracted, could be discharged from the said gun. Be as it may, the fact remains that the conflict between ocular account and the medical evidence impairs, seriously, the evidentiary value of the account given by the eyewitnesses. Reference may, with advantage, be made to the cases reported in:--
(1) Mushtaq Ahmad v. Rab Nawaz alias Security and another 1988 SCMR 1602: "We heard the learned counsel for the parties and with their assistance examined the judgment of the learned High Court. It was contended by the learned counsel for the petitioner that the finding of the learned High Court that the medical evidence did not furnish corroboration to the ocular evidence, was erroneous. In this regard, injury on the chest of the deceased, which was alleged to be the result of second shot, had caused wound measuring 1" x 3/4" and 1/4" with burning and blackening. A shot fired from a distance of 10/12 Karams as stated by Imam Din, P.W.11, or even from a distance of four yards as stated by Mushtaq Ahmad, P.W.10, could not have caused burning and blackening. Admittedly, distance of 12 Karams would be near about 20 yards and the finding of the learned High Court on this point is, therefore, unassailable. Reference to the Modi's Textbook of Medical Jurisprudence and Toxicology, 1975 Edition, made by the learned counsel was of no help."
(2) Aurangzeb v. The State 1990 SCMR 619: Penal Code (LXV of 1860)- --Section 302---Trial Court had held that none of the two eyewitnesses was present at the spot and had thus not seen the occurrence---Appellate Court, however, discarded evidence of one eyewitness being a chance and hostile witness but did not find any reason to disbelieve the other eye-witness and maintained conviction and sentence of accused---Appellate Court, on reappraisal of evidence, found that although so-called eye-witnesses were consistent in alleging that occurrence. Had taken place outside the shop where deceased after receiving injury fell down, yet such fact was belied by circumstantial evidence as blood, cardboards and wad were found from inside the shop---Site plan prepared at pointation of eye-witnesses was not in agreement with medical evidence as regards distance from which accused fired at deceased---Fact that disbelieved eye-witness was not present at the spot and had not seen occurrence was established by prosecution witness who had admitted that place where deceased was shown to be present in site plan was not visible from place of presence of said eye-witness---Accused also would not have fired at deceased in presence of said eve-witness in order to avoid creating evidence against himself---Presence of disbelieved eye-witness at the spot at relevant time, held, was highly doubtful and accused was charged on mere suspicion as it was an unseen occurrence---Accused was acquitted in circumstances."
' In the circumstances, the contention raised by the learned counsel for the appellant, in this behalf, is not without force.
24. The last point now needs to be considered. It is an admitted fact and is indeed confirmed that A.S.-I., Arif Javed (P.W.5), while preparing the site plan, did not find any source of light at the place where the occurrence took place. Not even a bulb, its holder or wire was found at the alleged place of occurrence. That this is so, is confirmed by the recital in the site plan. Khalid Mahmood (P.W.7) has not denied that there is no arrangement for electricity in village Laddha, either in the streets or in the fields, in the opening part of his cross-examination (page 48 of the book). Khadim Hussain (P.W.9) was confronted with his police statement wherein he has omitted to mention the existence of electricity bulbs at the place where the musical concert was held. Abdul Waheed (P.W.8) has alleged to have identified the accused in the light fixed at a place where a buffalo was being slaughtered. This fact, it may be mentioned, is neither supported by the other witnesses nor by the site plan. This being the state of evidence and the record, it would not be rash to presume, that there was no arrangement of light at the actual place of occurrence, which, in turn, is shrouded in mystery due to absence of blood, wad, empty, pellet, bullet or signs of struggle. This, to my mind, is the reason that each witness has seen the occurrence differently without any relation to reality. All of them are guessing violently and their version of the event is the by-product of patchwork. When the witnesses can falsely attribute a role of pelting stones, grappling and the use of "Dandas" to the five acquitted accused, then there is no surety that Muhammad Taj was actually armed with a shot gun as alleged by them. It will not be out of place to mention here that Khalid Mahmood (P.W.7) has stated in his cross-examination that Muhammad Taj appellant and Akram Taj were holding guns, whereas, in contrast to this, no shot gun is attributed to Akram Taj by the other eye-witnesses.
It may also be noted that if any of them had a gun, no one could dare to go near them and inflict injuries with an axe or a stick on Akram Taj, at least. When the witnesses stave no regard for truth and are motivated by feeling of revenge to give discr ant and distorted version of the occurrence, it cannot be held with legal certitude that Muhammad Taj was in fact holding a gun. The witnesses have, in unison, falsely charge all the acquitted accused with some overt act and thus, their false testimony in charging Muhammad -Taj appellant for killing the deceased and injuring the witnesses, cannot be accepted to establish the guilt of the accused-appellant. The possibility cannot be excluded that someone, during altercation in the Mela, might have fired shots resulting in the death of the deceased and injury to the witnesses and that the assailant, whosoever he may be, had decamped from the scene of occurrence absolutely unseen and unidentified, in pitch darkness. The occurrence, it seems, has taken place in a different context than the one alleged by the prosecution.
25. Legal position is settled that in a criminal case, when an eye-witness makes a false statement by way of addition or improvement in his testimony and on that score one or more accused in that case stand acquitted, then greater care and caution is to be exercised in dealing with the testimony of the witnesses in respect of other accused. It is to be accepted only and only when it is confirmed by some other unimpeachable corroborative evidence. In the present case, Khadim Hussain (P.W.9) is on inimical terms with the accused and is an employee of the deceased while Khalid Mahmood (P.W.7) is the cousin of the deceased. The evidence of Waheed (P.W.8) on the other hand, is full of contradictions and inherently defective and, therefore, cannot be relied upon as it is inconsistent with the medical testimony as well as with the testimony of other eye- witnesses. No reliance can, therefore, be placed on such evidence which is contradictory in nature and thus fails to inspire confidence.
26. Needless to mention that in criminal case the burden of proving its case rests entirely on the prosecution. The prosecution is duty bound to prove the case against the accused beyond reasonable doubt and this duty does not change or vary in the case in which no defence plea is taken by the accused. The defence plea is always to be considered in juxtaposition with prosecution case and in the final analysis if the defence plea is proved or accepted then the prosecution case would stand discredited. However, if the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case then in that case it would be enough but it may be mentioned here, that in case it is not established at all, no benefit would accrue to the prosecution on that account and its duty to prove its case beyond reasonable doubt would not diminish even if the defence plea is not proved or is found to be false. Reliance may be placed on case:-- Ashiq Hussain v. The State 1993 SCMR 417.
27. Similarly it was held in Hakim Ali and others v. The State reported as 1971 SCMR 432 that in criminal trial the onus always lies on the prosecution to prove its case and the prosecution has to succeed on the strength of its own case and not on the weakness of the defence.
28. For the reasons detailed above, I have no hesitation in holding that the prosecution has failed to prove its case against the appellant-accused for having committed the offence with which he has been charged. I, therefore, accept the appeal, set aside the conviction and sentence awarded to him by the learned Sessions Judge in respect of all charges and acquit him. His release warrants be issued.
29. Since I have acquitted the convict-appellant, therefore, the connected Revision Petitions (Nos.5 of 1993 and 13 of 1993) are also dismissed.