' MIAN BURHANUDDIN KHAN, J.-This is an appeal from jail against the judgment of the learned Sessions Judge, Swat, Camp Dir, whereby the appellants Kakai son of Rashtool and his son, Shaidar Khan were convicted and sentenced as follows: ' Kakai, appellant, under section 302, P. P. C. For the murder of Gul Mula, to imprisonment for life and a tine of Rs, 1,000 in default of payment of fine, further R. I for a term of five years, Shaidar Khan, appellant, under section 302, P. P. C. For the murder of Fatehur Rahman to life imprisonment and a fine of Rs, 1,000 in default of payment of fine, further R.
1. For a term of five years. It was further ordered that in case the fine is realized, it was to be paid to the heirs of the deceased persons as compensation under section 544-A, Cr. P. C. The judgment of the learned Sessions Judge is dated 14-11-1975.
2. It may be mentioned here that initially both the appellants were charged under section 302/307 read with section 34, P. P. C. For causing the double murders of Gul Mula and Fatehur Rahman, but the charges were amended at the trial by framing a charge under section 302/34, P. P. C. Against the two appellants, on two counts. While delivering his judgment the learned Sessions Judge held each of the appellant responsible for the murder of Gul Mula and Fatehur Rahman individually, without any community of intention.
3. The facts narrated at the trial are that on the day of occurrence, 1. e, 4th September 1974, at 8 a. m. The two deceased, namely, Gul Mula and his son, Fatehur Rahman, were busy in irrigating their land situate within the limits of Bibur village at a distance of eleven miles from Police Station Dir, when suddenly they found the water diminishing in the watercourse, and, therefore to ascertain the cause they went upstream in where they found that the 'Band' had been broken and the two appellants present with another unknown person near the breach of the watercourse. When the deceased, Fatehur Rahman asked the appellants as to why they have done so, it is alleged, that Kakai appellant said in reply that he had done it and no one could question it and if any one interfered he will do so at the risk of his life. Shaidar Khan, appellant, who was standing armed with a rifle, fired a shot at Fatehur Rahman deceased with which he was hit. Thereafter, it is alleged, that Kakai appellant fired a shot at the deceased, Gul Mula, who was hit on his chest and fell to the ground and died on the spot, while Fatehur Rahman was lying there in wounded condition and the two appellants decamped. Muhammadullah alias Hafiz, P. W. 5, and others collected on the spot and carried the dead and the injured to the village. It is stated that a little while later the police arrived on the spot and Muhammadullah Jan alias Hafiz lodged the report, Exh. P. A/1, which was read over to him and he thumb-impressed it after admitting the same to be correct.
4. Umar Rahman, A, S. I. P. W. 2, who was during the days of occurrence incharge of the Police Post Saidu Sharif, received information on telephone from the Central, Hospital, Shaidu Sharif that Fatehur Rahman was brought to the hospital. On this information he went to the hospital and found Fatehur Rahman lying injured and he recorded his statement, Exh. P. A/2 (treated as dying- declaration by the learned trial Court). It was read over to Fatehur Reiman, who after admitting the same to be correct, thumb-impressed it. The Police Officer prepared the injury-sheet, Exh. P. Q. Of Fatehur Rahman and sent the statement Exh. P. A/2, to Police Station, Dir for the registration of a case as the occurrence had taken place within the jurisdiction of that Police Station.
5. The motive as staled by Muhammadullah Jan, P. W. 5, is that there was some dispute between the parties resulting in exchange of altercation between them, as a result of which the two appellants fired at the two deceased.
6. Dr. Bakht Baidar Khan P. W. 3, was examined at the trial and he stated that he examined Fatehur Rahman son of Gul Mule on 4-9-1974 at 7-15 p. m. And found the following injuries on his person .
(1) A wound of entry on right side at the lumber area on back.
(2) There are six wounds of entry and two wounds among them are stitched in Taimargara Hospital. Charring marks were present. No exit wound was seen.
7. Dr. Faqir Muhammad, P. W. 8, examined Fatehur Rahman, who was admitted in the Civil Hospital at Taimargara on 5-11-1974, and stated that Fatehur Rahman deceased was admitted in the hospital during the time of his predecessor and that he (patient) was discharged on 21-12-1974.
8. Dr. Mahmood Khan, C. W. 1, produced the treatment chart of Fatehur Rahman, deceased and stated that he operated upon him on 5-9-1974 (time of operation is not indicated) and the following are the operation notes t-
(i) Right paramedian laparatomy. Findings: (perietal cavity full of blood.
(ii) extra perietal cavity injured, vessels and uretery is not injured. Extra perietal space stitched and drained. Peretoial cavity dramed. Abdomen closed in layers.
9. Lal Rahman, F. C. P. W. 4, stated that he was deputed to arrest the two appellants by means of warrants under section 204, Cr. P. C. He searched for Kakai and Shaidar Khan, appellants, in their village Bibur, Baidar, Charagh Ganai, but they were not present in their village and were reported to have gone into Hiding. He returned the warrants, Exh. P. F/1 and Exh. La. F/2 unserved after getting statements of the notables of the village. He was also entrusted with proclamations under section 87, Cr. P. C. In respect of the aforesaid appellants, which are Exh. P. F/3 and Exh. P. F/4, and stated that he affixed a copy of the proclamation on a conspicuous place in the villages of the appellants and the other copy was pasted on the Notice Board outside the Court concerned.
' Muhammadullah Jan alias Hafiz, P. W. 5, was examined and he stated that Gul Mula deceased was the father of Fatehur Rahman deceased and was his brother ; that on the day of occurrence Gul Mula and Fatehur Rahman deceased had gone to their field to irrigate their land and he followed them for irrigating his own land, where he saw Shaidar Khan appellant, who fired at Fatehur Rahman and hit him, and Kakai appellant fired at Gul Mula deceased ; that both were hit and fell on the spot. This witness has further stated that he had not seen any dispute over the turn of irrigation water between the parties. He has made a statement which is totally disjointed as if he was withholding the information. However, he stated that he lodged the report, Exh. P. A/1, on the arrival of the police. He was cross-examined at length and there are certain portions of his statement in the cross-examination, to which we shall make reference later on.
' Umer Wahid, P. W. 6, stated that on the day of occurrence ho was also busy irrigating his field when he was called out by smother cultivator of the village land, complaining that water has been diverted by some one and that he should come and settle the matter with the said person ; that he went to the outlet alongwith Gul Mula, deceased, who joined him on the way ; that on reaching the outlet he found many people present there ; that Gul Mula, who was a brother-in-law of Kakai, appellant, asked the witnesses to stay behind and that he will go and talk over the matter with Kakai, therefore, he remained behind and shortly afterwards he heard the report of two shots. Rest of his statement is full of confusion and unfortunately it has been made worst by the learned trial Court. However, the prosecution requested for the transfer of his statement under section 288, Cr. P.
C. Which request was granted by the learned Sessions Judge and it was ordered that the said statement dated 30-8-1975 be transferred to Sessions file.
' Namroz is the next witness who has been examined as P. W. 7, and his statement is that he had gone to the spot to settle the turn of water as there was a dispute between the tenants with Kakai, appellant. While going towards the inlet of the water channel be heard two shots, which were fired by Kakai and Shaidar Khan appellants, with which Gul Mula and Fatehur Rahman deceased were hit. But in the same breath he said "I, however, could not make out as to whose shot had injured whom" and that he did not know the reasons why the shots were fired, and when the shots were fired the accused ran away and ho went to take care of his men, who were hit.
' Nurul Huda Khan, S. H. O. P. W. 9, recorded the report of Muhammadullah Jan, P. W. 5 (Exh. P. A/1) in the village. He prepared the site plan, Exh. P. B., with its foot-notes correctly. He denoted the place where Gul Mula was fired at by Kakai, appellant, from point No,
3. There was blood on this point.
Fatehur Rahman, according to the site plan, was hit at point No, 2 by Shaidar Khan appellant, who fired from point No,
4. At points 5 and 6 Umar Wahid and Muhammadullah Jan, P. Ws. Were present at the time of the occurrence. He prepared the inquest report, Exh. P. D., of Gul Mula and Muhammadullah Jan, P. W. Was not willing to get the post-mortem performed on the dead body of Gul Mula deceased. He, therefore, obtained his statement on the application, Exh. P. E. He further stated that he obtained warrants, Exh. P. F/l and Exh. P. F/2, against Shaidar Khan and Kakai, appellants, and entrusted them to Lal Rahman, D. F. C. P. W.
10. The two appellants were examined at the trial under section 342, Cr. P. C. Who pleaded not guilty and produced no defence.
11. The learned Sessions Judge while convicting the appellants held that according to the medical evidence Fatehur Rahman deceased had sustained injuries which were sufficient in the ordinary cour se of nature to cause his death and the question had become material because he died after 5/6 months after the occurrence. But he did not proceed to examine the proposition whether the death was the direct result of injuries caused by the shot of Shaidar Khan, appellant, or something else had intervened resulting in the death of Fatehur Rahman after a period of 5/6 months. All what he has discussed in the subsequent paras. Is that the occurrence took place all of a sudden on account of a dispute over the irrigation water, and, therefore in the circumstances of the case section 34, P.P.C. Was not applicable. He proceeded further saying that each one of the appellant is liable for his individual act and convicted Kakai appellant for the murder of Gel Mula and sentenced him to imprisonment for life and a fine of Re. 1,000. Similarly, for the murder of Fatehur Rahman he held Shaidar Khan, appellant, guilty and sentenced him to imprisonment for life and a fine of Rs, 1,000. In our opinion the learned Sessions Judge has not correctly appreciated the legal position involved in the case. Common intention can be formed at the spur of the moment if the surrounding circumstances suggest that the accused had acted with the knowledge and persisted in his course of action, and death is cause owing to the eventuality which he had foreseen taking place, it may give rise to a legitimate deduction that he intended the causing of death if that eventuality did occur, and he would then be liable as though he had caused A that death himself.
With this proposition the learned sessions Judge should have examined the course of eventuality which led to the death of two persons as it is evident from tee record and he has accepted the evidence ; that the two appellants had diverted the water from the field of the deceased and when the latter approached them and protested, both the appellants resorted to firing effectively at them. Therefore, it cannot be by any logical deduction said that the two appellants had no constructive liability for the offences committed by the other.
11-A. The next point which has agitated our minds is that the learned Sessions Judge leas treated the statement of Fatehur Rahman deceased, Exh. P. A/2 as dying declaration and has also held that the death of Fatehur Rahman was the direct result of the injuries caused to him by Shaidar Khan, appellant. In fact the doctor's statement would establish that Fatehur Rahman was brought to the hospital on 4-9-1974, and was examined by Dr. Bakht Baidar Khan, P. W.
3. He was operated upon by Dr. Mahmood Khan, C. W. 1, and subsequently discharged from the hospital after fifteen days of his admission as "cured after treatment". He was, however, brought again to the Central Hospital, Taimargara on 5-11-1974 and was again discharged on 21-12-1974. Dr. Mahmood Khan produced the post-operation record which has been reproduced in the preceding paras. Of this judgment. In his statement to a Court question he replied "in view of my operation notes mentioned above, I am of the opinion that the above injuries were sufficient to cause death in the ordinary course of nature". But this statement is not factually correct because in the statement of Dr. Bakht Baidar Khan P. W. 3, we find as follows:- "If the injury had injured the vital parts like kidney and liver, they would have in the ordinary course of nature been sufficient to cause death."
' He further stated tnat the patient was operated upon by Dr. Mahmood Khan, now at Central Hospital at Shaidu Sharif, and, therefore he would be in a position to speak at out the condition of internal organs. And yet at another place he stated "so far as I remember Fatehur Rahman was discharged after fifteen days of his admission, as verified by me from the ward register. He had been cured after treatment, therefore, he was discharged", Dr. Mahmood Khan, C. W. 1 stated in cross-examination "he was discharged on 19.4-1974 being fully cured. Kidney or liver of the patient was not injured". Therefore, in view of these statements we hold that the death of Fatehur Rahman was not the direct result of the injuries sustained by him with the firing of Shaidar Khan, appellant.
12. We find that there is nothing on the record to indicate that the injury which Fatehur Rahman deceased received during the occurrence was a circumstance of a transaction which resulted in his death. We have examined the evidence for ourselves and the only portion of the testimony adduced by the prosecution which has bearing at all upon the admissibility or otherwise of Fatehur Rahman's statement, is the statement of Dr. Bakht Baidar Khan, P. W. 3, and Dr. Mahmood Khan, C.
W. 1, who stated that Fatehur Rahman was admitted in the hospital and discharged after fifteen days. Thereafter he was again admitted and discharged as cured. This evidence of the doctor throws no light upon the cause of death. The prosecution in the present case did not seem to have realized that if they wanted to rely upon the statement of Fatehur Rahman deceased, it was their duty to show by satisfactory evidence that it was a statement admissible under section 32 (i), Evidence Act. The provisions of this section are in the nature of exceptions and the onus of establishing circumstances that would bring the statement within any of the exceptions contemplated by section 32 (1) lies clearly upon that party which insists to avail itself of the statement. In our view the prosecution in the present case has failed to discharge that onus. Upon the evidence, as recorded, it i3 not possible to say that the statement in question is admissible because it comes within the terms of section 32 (1), inasmuch as there is nothing to show that the injury to which that statement related was the cause of Fatehur Rahman's death, or th circumstances under which it was received resulted in his death. We hav noticed that the impression seems to prevail in some of the Courts below that as soon as a person is dead, his statement becomes admissible in evidence. It is very necessary to correct the impression. When a statement of a deceased person is admitted under section 32 (1), Evidence Act, it is necessary for the party seeking to put that statement in evidence to establish the pre-requisites laid down in the section. Therefore, to conclude, we keep out of consideration the statement of Fatehur Rahman, Exh. P. A/2. The remaining evidence consisting of the statement of Muhammadullah Jan, which has been referred to in the preceding paras. Establishes the case beyond any reasonable doubt against the appellants that they were the perpetrators of the crime resulting in the death of Gul Mula and injury to Fatehur Rahman, deceased. His statement is further supported by the statement of Umar Wahid, P. W. 6, though at the trial this witness had resiled from his statement recorded by the Committing Court and the same was transferred by the learned trial Court under section 288, Cr. P. C. To the Sessions file. This statement reads:- "On the day of occurrence at about 8 a. m. I had gone to my field, Baz Qamar, all of a sudden water flow stopped, so I alongwith Muhammadullah Jan and other persons went to Kuram (the main stream) where we found accused, Kakai and Shaidar Khan standing armed with 'topaks'. The moment we reached near them, the two accused fired at Gul Mula and his son, Fatehur Rahman, who were going ahead of us. At this Gul Mula died at the spot. While his son, Fatehur Rahman fell down seriously injured."
Under section 288, Cr. P. C. The evidence of a witness transferred to the file of the trial Court can be treated as substantive evidence, and, therefore the value of such statements transferred to the file of the trial Court depends upon how far they can be believed and accepted in the context of the entire case. The rule that ordinarily the evidence of a witness who has contradicted himself should not be held by a Court of law to be sufficient evidence of the guilt of an accused person beyond all those doubts the benefit of which must go to the accused, is not universally applicable because the weight attachable to the statement of a witness must in each case depend upon the circumstances of that care, and laying down any hard and fast rule is neither possible, nor wise.
Here in the instant case we find that the circumstances are such that the statement of Umar Wahid, P. W., carries conviction, there Is no background of previous enmity and there is no reason for bringing a false charge against the two appellants. Therefore, we uphold the conviction and sentence of Kakai, appellant, under section 302, P. P. C. For causing the death of Gul Mule, deceased.
13. As regards Shaidar Khan, appellant, it seems to us clear that if the act comes within the purview of section 300, P. P. C. At all, it must come in this case within the purview of section 300 (3), P. P. C.
Because there was obviously an intention to cause bodily injury and that the only question is, whether the bodily injury intended to be inflicted, was sufficient in the ordinary course of nature to cause death. If, however, it could be contended that the act fell within the purview of section 300 (4), then it would be necessary to find that the act done was so imminently dangerous that it would in all probability cause death or such bodily injury as was likely to cause death. Now, the contention, ordinarily speaking is deduced from the injury actually caused, and, therefore, in this case it must be taken that Shaidar Khan, appellant intended to cause the injury which he did cause. It follows, therefore, that the intention of Shaidar Khan was to shoot at the deceased with a shot-gun aiming at the vital part of his body, or thereabouts, as the evidence shows and as the medical evidence corroborates. The prosecution has in no place led any evidence to show that such a wound would be sufficient in the ordinary course of nature to cause death, except in the statement of Dr. Mahmood Khan, C. W. 1, which has not been believed by us as the same is without any foundation, or was so imminently dangerous that it would in all probability cause death.
14. In the absence of such direct evidence and in view of the medical evidence which, as already said, is not clear as to the final cause of death ; also in view of the fact that the qualifications of the doctor who deposed as to the cause of death are quite unknown to us and further in view of the statement of Dr. Mahmood Khan, C. W. 1, Fatehur Rahman was discharged on 19-4-1974 being fully cured kidney or liver of the patient was not injured, it would be impossible to hold that either section 330 (3) or (4) applies to this case. There is further the fact that the deceased Fatehur Rahman was actually shot on 4-9-1974 and he died after about 5/6 months. In these circumstances, therefore, we hold that the appellant, Shaidar Khan, is not guilty of the murder.
15. There remains the question whether the offence falls under section 304, Part I or Part If, section 307, P. P. C. Or section 326, P. P. C. We consider the question to be free from any complication.
Appellant, Shaidar Khan, fired at the deceased Fatehur Rahman, hitting him on the vital part of his body, therefore, he is guilty of attempt to murder and his conviction is altered to section 307, P. P. C.
Wherein the punishment is provided imprisonment for life, and it is a case in which maximum punishment is called for. Therefore, Shaidar Khan appellant, is convicted under section 307, P. P. C.
And sentenced to imprisonment for life and a fine of Rs, 1,000 in default of payment of fine, further two years R. I. If the fine is realised it should be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C.
16. The appellants be informed of the result of this appeal through Jail authorities.