Z. A. CHANNA, J.-The five appellants, who are closely inter-related have been convicted the learned Sessions Judge, Jacobabad; by his judgment delivered on 8-12-1977, of offences under sections 302 and 30), P. P. C. Read, with section 149, P. P. C. Appellants Amanullah and Sobho were sentenced for the offence under section 302/149 to death and also to pay a fine of Rs. 1,000 each or in default of payment of fine to suffer R. I. For 6 months if their death sentence was not confirmed, while the appellants Yaqoob-Biland and Abdul Majid were sentenced for the said offence to imprisonment for life and also to pay a fine of Rs. 1,000 or in default of payment of fine to suffer further R.1. For 6 months. The reason assigned by the learned Sessions Judge for awarding lesser penalty to these 3 appellants was that appellants Biland and Abdul Majid took no active part in the crime while appellant Yaqoob did not cause any injury to deceased Muhammad Siddik. For the offence under section 307 read with section 149, P. P. C. Appellant Yaqoob was sentenced to R. I. For 7 years while the remaining appellants were sentenced for the said offence to R. I. For 5 years. All 5 of them were also sentenced for the said offence to pay a fine of Rs. 500 or in default to suffer R. I.
For 3 months. Appellants Amanullab. Sobho and Yaqoob were also convicted under section 148, P.
P. C. And section 13(d) of the West Pakistan Arms Ordinance, 1965, and on the former count each one of them was awarded 9 months' R. I. And on the latter count one year R. I. Appellants Biland and Majid were also sentenced for an offence under section 147, P. P. C. And each of them was awarded R. I. For 6 months. The learned Sessions Judge further directed that half of the amount of the fine imposed on the appellants, if recovered, should be paid as compensation under section 544-A, Cr.
P. C. To the first informant, Hazar Khan, and injured Kirir, in equal shares. The appellants have preferred an appeal to this Court against their convictions and sentences. The cases of appellants Amanullah and Sobho also been referred to this Court by the learned Sessions Judge for the confirmation of the death sentences awarded to them.
2. The incident giving rise to this appeal occurred on the night interven--ing between the 16th and the 17th of June 1976, which corresponded to the 18th of Jamadil-Awwal, in the house of first informant Hazar Khan, in village Attur Bhanagar, Deh Ahmadpur, about 3 miles away from Saddar Police Station, Jacobabad. It is alleged that on that night, first informant Hazar Khan, his father Siddik, his Masat Kirir and his maternal uncles Piral and Jurio, were sleeping in their houses, which have a common court--yard surrounded by a reed-wall, when at about midnight, they woke up on challenges and saw, by the light of the moon, appellants Amanullah and Sobho standing on the adjoining roof of the Otak of Wadero Hoti Khan, armed with guns. The witnesses are also stated to have seen appellants Biland, Majid and Yaqoob alongwith absconder Habibullah, standing near the entrance of their houses out of whom appellant Yaqoob was armed with a gun while others had lathis. It is stated that the persons armed with guns fired at Mohammad Siddik and Kirir, both of whom were bit and fell down----After firing the shots, the appellants are alleged to have made good their escape. In consequence of the injuries sustained by them, both Kirir and Mohammad Siddik became unconscious. The motive for the attack on the complainant party is stated to be the fact that a month prior to the incident a bullock belonging to one Sheru Brohi was stolen and the appellants were suspected to have a hand in that theft. The appellants suspected that the complainant party had involved them in that case.
3. Immediately after the incident, the two injured, Muhammad Siddik and Kirir, were removed by first informant Hazar Khan and the other witnesses to Saddar Police Station, Jacobabad, where Hazar Khan lodged his F. I. R. At 2-00 a.m. Which was recorded by A. S.I. Ghulam Hussain Shah. The A. S. I. Sent the two injured to the Civil Hospital at Jacoabad for examination and treatment and thereafter recorded the statements of witnesses Piral and Jurio who had accompanied the injured to the police station. On the next morning, he inspected the wardat from where he secured blood- stained earth. He also found 8 empty cartridges on the roof of the otak of Hoti Khan and 5 empty cartridges in the courtyard of the house of the complainant. He secured the same in the presence of Mashirs Nasir Khan and Pir Buz. On the same day, dying declaration of injured Muhammad Siddik was recorded at the Civil Hospital, in the presence of Medical Officer, Manzoor Ahmad Khoso, by Mr. Abdul Razzak, Head Munshi and I1Ird Class Magistrate, Jacobabad. This statement was recorded at 8-00 a.m. On the same day, at 4-30 p.m. Injured Muhammad Siddik succumbed to his injuries.
4. On 30-6-1976, all the 5 appellants were arrested. Appellants Amanullah Sobho, Biland, and Yaqoob are stated to have been arrested alongwith one Nisar from an abandoned watercourse said to belong to Rinds. It is stated that from appellant Amanullah one double-barrelled gun alongwith 10 cartridges was secured, from appellant Sobho one single-barrelled gun and 7 live cartridges were recovered, while from appellants Yaqoob and Biland a hatchet each was secured.
So far as appellant Majid is concerned, be was arrested by A. S. I. Muhammad Umar near Ahmad Mian Minor and from his possession one country-made pistol and 3 live cartridges, are stated to have been secured.
5. The statement of injured Kirir was recorded by A. S. I. Ghulam Hussain Shah on 2-7-1976. His statement could not be recorded earlier because he had throughout remained unconscious. On completion of the enquiries, the Police challaned the appellants, showing Habibullah as absconder, as he could not be arrested.
6. The two injured, Muhammad Siddik and Kirir, were examined on 17-6-1976 by Dr. Manzoor Ahmad, Medical Officer, Jacobabad. He found the following external injuries on them, which in his opinion had all been caused by gunshots :---- "Muhammad Siddik.
(1) A lacerated punctured type of wound --" .In diameter on upper left chest at clavial, wound of entrance.
(2) Two lacerated puntured type of wounds each -- " in diameter on front chest at upper part of sterna, wound of exit.
(3) Two lacerated punctured type of wounds each -- " in diameter on left upper arm.
(4) A lacerated punctured type of wound -- " in diameter on left leteral chest.
(5) A lacerated punctured type of wound -- " in diameter on antereo--medial aspect of left fore- arm just below the left wrist joint, wound of entrance.
(6) A lacerated punctured type of wound -- " in diameter on lateral side of left fore-arm, just near wrist joint. Wound of exit.
(7) A lacerated punctured type of wound -- " in diameter in right ring finger.
Kirir:
(1) Two lacerated punctured type of wounds -- " in diameter on left frontal bone.
(2) A lacerated punctured type of wound -- " in diameter on right parietal bone." '
7. The Medical Officer opined that X-ray of the injuries of Muhammad Siddik showed multiple radio opaque shadows, suggesting presence of pellets or other metallic substances the doctor has further stated that at the time of his admission, injured Muhammad Siddik was in a precarious condition and expired on 17-6-1976, at 4-30 p.m. In the opinion of the Medical Officer, the injuries on Muhammad Siddik appeared to have been the result of two gunshots. X-Ray on injured was also taken which likewise showed multiple radio opaque shadows, suggesting presence of pellets.
According to the Medical Officer, the injuries on Kirir were dangerous to life. In his view, the injuries on Kirir could be caused by one or two shots.
8. The defence of the appellants was that they had been falsely implicated due to disputes with the complainant side over matrimonial matters. In their defence, they examined two witnesses, by name Hoti Khan and Fateh Muhammad. The former is admittedly the Nekmard of the village. He has stated that the double-barrelled gun allegedly secured by the police from appellant Amanullah belongs to him. He has further testified that on the morning of the incident, the police had come to his village and not only secured his aforesaid gun but also the guns of the other villagers, including that of D. W. Fateh Muhammad, who is his cousin. He has further stated that the police kept them on hopes that their weapons would be returned but ultimately they had been foisted on the appellants. The witness produced in Court the licence for his gun.
9. The evidence of P. W. Fateh Muhammad is substantially similar to that of Hoti Khan. He has also stated that the Police had secured his gun on the morning of the incident as also the licensed guns of the other villagers. Both this witness and Hoti Khan have emphatically claimed that their respective weapons were with them on the night of the incident.
10. The incriminating evidence against the appellants consists of-----
(a) ocular testimony of P. Ws. Hazar Khan, injured Kirir, Juriai and Pir Bux;
(b) dying declaration of Muhammad Siddik recorded by IIIrd Class Magistrate Abdul Razzak on 17- 6-1976;
(c) recoveries of guns and other weapons from the appellants on 30-6-1976;
(d) the report of the Ballistic Expert to the effect that 4 out of the 13 empties sent to him matched with the single-barrelled gun allegedly secured from appellant Sobho and had been fired from the said gun;
(e) medical evidence which supports the evidence of the eye-witnesses regarding sustaining of gunshot injuries by Muhammad Siddik and Kirir; and (f ) the evidence relating to motive.
11. As to the ocular evidence, all the 4 eye-witnesses, including injured Kirir, have testified to having seen and identified all the 5 appellants by the light of the moon. They have deposed that 3 of the appellants, namely, Amanullah, Sobho and Yaqoob, were armed with guns. There is, however, some contradiction in the testimony of the eye-witnesses as to the weapons carried by the remaining two appellants. According to the F. I. R. And the evidence given in the Sessions Court by the complainant, injured Kirir and Jurial, they were armed with hatchets. However, P. W. Pir Bux has stated in his evidence in the Sessions Court that these appellants had lathis and hatchets, while, in their Police statements, P. Ws. Kirir, Jurio and Pir Bux have stated that they were armed with hatchets. Even in his 164 statement, P. W. Jurial has stated that the3e appellants were armed with hatchets. This, however, in our opinion, is a minor contradiction as it is possible that in the moon light, since the witnesses saw the culprits from some distance, the witnesses might have mistaken lathis for hatchets and vice verso, specially if the lathis were iron---plated or iron-shod, which type of weapons are invariably carried by villagers when ergaged in an adventure which may involve the use of weapons.
12. The question which has engaged our earnest consideration, however, is whether the witnesses had adequate opportunity of seeing and identifying their assailants in the circumstances of the case, and if so, whether the possi--bility of their falsely implicating one or more appellants could be safely excluded. The incident admittedly took place in the middle of the night when the witnesses must have been fast asleep. The shots fired by the culprits could not have taken them more than a few moments and admittedly they ran away immediately thereafter. It thus falls to be considered whether in the circumstances the possibility of the witnesses being mistaken as to the identity of their culprits can be safely excluded. As already pointed out the incident occurred on the 18th of Jamadiul-Awwal. According to the first informant, the moon was standing in line of the shoulder in the sky. The evidence of the tapedar, who bad prepared the sketch of the scene of offence, is to the effect that the roof of the room (otak of Hoti Khan) from where appellants Amanullah and Sobho are said to have fired their guns was 52 feet away from the cot of deceased Muhammad Siddik. The distance from the roof of the otak to the cot of injured Kirir is not given, but the tapedar has deposed that the cot. Of injured Kirir and P. W. Pir Bux was 30 feet away towards the South of the point where ultimately Kirir and Siddik bad fallen down. We are thus left in some doubt as to the exact distance between the cot where injured Kirir and P. W. Pir Bux were sleeping from the roof of the otak from where appellants Amanullah and Sobho are said to have fired their guns. Similarly, the Tapedar has not given the distance between the roof of the otak and the cot on which P. W. Jurio was sleeping but has stated that P. W. Jurio's cot was 20 feet to the East of the place where injured Muhammad Siddik ultimately collapsed. The tapedar has also testified that the place where the appellants Abdul Majid, Muhammad Yaqoob, Biland and absconder Habib--ullah were standing was 70 feet from the point where injured Kirir and deceased Muhammad Siddik collapsed. Again the distance between this point and the places where the other witnesses were sleeping has not been given, but the sketch of the wardat shows that the place where the said appellants were standing was outside the reed-wall surrounding the common courtyard of the houses of the complainant party. It appears from the evidence of the complainant and the witnesses that both Muhammad Siddik and Kirir fell down on their cots on being hit by the gunshots. If any weight is to be attached to this evidence, then in all probability the injured witnesses were asleep when they were fired at for according to the Medical Officer they sustained injuries while in a sleeping position. It was urged by Mr. Manzoor Hussain, the learned counsel for the State, that the eye-witnesses, including deceased Muhammad Siddik and injured Kirir, had been roused from sleep by the challenges thrown out by the appellants, as stated by them, and thus had ample opportunity of seeing and identifying their assailants but we find difficulty in accepting this part of their story for if the culprits had taken the trouble of launching the attack at dead of night, in all probability to avoid their being identified, it is unlikely that they would have thrown out challenges so as to wake the witnesses and thwart their efforts at not being identified.
Furthermore, the version of the challenges is inconsistent with the medical evidence which shows that both deceased Muhammad Siddik and Kirir sustained injuries while in a sleeping position. If there had been challenges and they had heard the same, they would have got up, in which case they would not have sustained the injuries in a sleeping position. Even if it be assumed that the deceased, the injured and the witnesses did get up either because of the challenges thrown out by the culprits or on the fire-arm reports, it is unlikely that having just got up from sleep and having only a momentary glimpse of the culprits from some distance, their evidence a s to the identity of the culprits can be safely relied upon and the reasonable possibility of an error on this account can be excluded. As already pointed out it was the 18th of the lunar month and the moon was only shoulder high in the sky. It- could not, therefore, have given very strong light. So far as the appellants Yaqoob, Majid and Biland are concerned, they were not only standing outside the reed- wall but some 70 feet away. , It has been held by a learned Single Judge of the Lahore High Court in the case of Muzaffar v. State (1975 P Cr. L J 1336), that identification of a person from a distance of 70 feet, even in clearest moon, is impossible. If the witnesses could not have identified at least 3 of the culprits because of the distance that they were from them and also on account of the fact that the moon was neither full nor it had risen very high, their assertion that they had positively identified these culprits would re-act even in respect of their identity of the culprits who are said to have been on the roof of the otak of Hoti Khan.
13. Even otherwise the claim of the witnesses to have identified the culprits on the roof of Hoti Khan's otak is open to serious doubt and the reasonable possibility of their being mistaken in this regard cannot, in the circumstances of the case, be excluded. As already pointed out, the witnesses seem to have seen these culprits from a distance of at least 52 feet. In Criminal Appeals Nos. 292 and 293 of 1970, the judgment wherein was written by one of us (Z. A. Channa, J.), it was observed that according to certain learned authors on criminal investigation and identification, the maximum distance at which it was safe to accept identification in moon light was 33 feet though in tropical countries the distance may be somewhat increased. According to Dr. Hans Gross in his "Criminal Investigation", 1934 Edition, p. 185, in bright moon light one can recognize a person safely from a distance of 23 to 33 feet and at the very brightest period of the full moon, at a distance of 36 feet.
The learned author, however, has conceded that in tropical countries the distance at which identification by moon light is possible may be increased. According to Tidy, best known person cannot be recognized in the clearest moon light beyond the distance of 17 yards. Colonel Barry is of the view that at a distance greater than 12 yards, the stature or outline of figure alone is available; as a means of identification. We therefore, are of the view that identification in the circumstances of the instant case, namely on the 18th of the lunar month from a distance of 52 to 70 feet or more, when the moon had risen only in line with the shoulder, as admitted by first informant Hazar Khan, and when the witnesses had admittedly suddenly awakened from sleep and could have had only a momentary glimpse of their assailants, is must unsafe for recording a conviction in a murder case.
14. So far as the dying declaration of Mohammad Siddik is concerned, it does not inspire a great deal of confidence. It has been admitted by P. W. Abdul Razzak, who recorded the same, that the relations of Mohammad Siddik were present when it was being recorded. The possibility thus of the witnesses having tutored the injured to implicate the appellants, against, whom an F. I. R. Had already been lodged, cannot be excluded. Furthermore, the dying declaration is inconsistent with the evidence of the other eye-witnesses that appellant Yaqoob had not only fired several shots from his gun but some of his shots had hit deceased Mohammad Siddik, for according to it only appellants Amanullah and Sobho had fired both at Siddik and Kirir. In any case, dying declaration, as pointed out by Dorab, J. In Zarif Khan v. State (PLD1977SC612) is weaker type of evidence than evidence subjected to cross-examina--petition. In Talib Khan v. State (PLD1970SC13) Sajjad Ahmad, J., pointed out the pitfalls in laying down rigid rule of implicitly relying on the statement of a person in the apprehension of death and pointed out that "the assessment of evidence,, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence 'B so as to find out what is true and what is false therein". He also took note of the fact that it had become common practice for people to add innocent persons alongwith the guilty to satisfy the sense of revenge. Finally, if the witnesses, including Kirir, could not have had such an opportunity of seeing and identifying their culprits, so as to eliminate the reasonable possibility of error, the dying declaration would also suffer from the same infirmity, for deceased Mohammad Siddik also could not have had, under the circumstances, such an opportunity of seeing and identifying his assailants so as to eliminate chances of mistake or error.
15. So far as the evidence of recoveries is concerned, it suffers from two infirmities.---- In the first place, the recoveries were admittedly not made in the presence of independent witnesses and hence no such witness has been examined. The only evidence on this point is that of A. S. I. Ghulam Hussain Shah and A. S. I. Mohammad Umar. If, as asserted by the two police officers, they had definite information as to where the appellants were to be found and had specifically gone to apprehend them, there was no reason for them not to have taken independent witnesses with themselves. The more serious infirmity, however, is that guns allegedly secured from appellants Amanullah and Sobho have been claimed by D. Ws. Hoti Khan and Fateh Mohammad, who have produced licences in respect of them. It has not been explained by the prosecution how the guns of Hoti Khan and Fateh Mohammad came to-be in the possession of these two appellants. On the other hand, Hoti Khan and Fateh Mohammad have stated that their guns were taken from them by the police and so far as they can say the same have been foisted on the appellants. The testimony of these two witnesses, who are independent persons, one of them being admittedly the Nekmard of his village, and who are not shown to have either any undue interest in the appellants or animosity with the complainant party, has created serious doubt in our mind regarding not only the impartiality of the investigation carried out by the Police but also as to the veracity of the prosecution witnesses. So far as appellant Majid is concerned, if he did possess a country-made pistol, as stated by A. S. I. Mohammed Umar, there was no reason why he should have been armed with a hatchet or the lathi on the night of the incident. It would have been much safer for him and also be would have been better armed if be would have carried a pistol. The alleged recovery of a pistol and cartridges from him thus in no way lends support to the prosecution case either against him or the other appellants.
16. We are also of the view that the report of the Ballistic Expert does not lend such assurance to the evidence of the eye-witnesses as to prompt us to accept the same. In the first place, the Ballistic Expert has given opinion in respect of only 4 of the empty cartridges out of 13 which were sent to him for examination alongwith the weapons allegedly recovered from the appellants. In regard to the remaining 9 cartridges; his report, peculiarly enough, is that no opinion can be expressed whether they have or have not been fired from the guns sent to him alongwith the cartridges. No reasons have been assigned by him either for this opinion or the opinion that 4 of the crime empties had been fired from the single-barrelled gun allegedly recovered from appellant Sobho. If he was not in a position to give an opinion about 9 of the cartridges, it is not understood how he could give a positive opinion about the remaining 4 cartridges. It may also be pointed out that though the recoveries of the cartridges were made on 17-6-1976, .They were sent to the Ballistic Expert on 18-10-1976. It is not understood why it took the police four months to send the cartridges to the Ballistic Expert. Finally, it may be mentioned that the Mashirnama of the recovery of the crime empties does not mention that they were sealed or that the signatures of the mashirs were taken thereon. In view of this omission and the delay in the sending of the cartridges to the Ballistic Expert, together with the evidence of D. Ws. Hoti Khan and Fateh Mohammad that their arms and ammunition had been taken away from them by the Police, the evidence on this point does engender a reasonable doubt that the cartridges sent to the Ballistic Expert may have been subsequently fired from the weapons sent to him.
17. No doubt, the medical evidence does show that both Mohammad Siddik and injured Kirir had sustained gunshot injuries but this evidence is of little assistance in determining who fired the shots at them. This evidence, therefore, only supports the ocular evidence in regard to the weapons employed by the assailants.
18. There remains the evidence regarding the motive, which is stated to be the fact that the appellants were suspected to have a hand in the theft of the bullock of Sheru Brohi, which took place a month prior to the incident, and they suspected that they had been involved by the complainant party. Sheru Brohi has not been examined, but even Hoti Khan has admitted that theft of Sheru's bullock had taken place and that Sheru had filed a case against appellants Yaqoob, Sobho and Amanullah. The question, however, that remains to be considered is whether the appellants suspected that they had been involved at the instance either of deceased Mohammad Siddik or the complainant party. D. W. Hoti Khan, who is the Nekmard, should be expected to know whether the appellants did entertain such a belief, has expressed complete ignorance on the point.
Furthermore, even deceased Mohammad `'Siddik, in his dying declaration, has not spoken about this motive and on the contrary stated that he had no dispute with the appellants. In the circumstances, we are of opinion that the motive does not appear to have been proved.
18-A. We have given very careful consideration to the entire evidence in the case and are of opinion that it is not of such a character that implicit reliance could be placed on the same. An appraisal of the evidence in the case leaves a genuine doubt in out minds as to the guilt of the appellants We would accordingly give their the benefit of this doubt, set aside their convictions and sentences and accept their appeal. In consequence, the reference for the confirmation of the capital sentence awarded to appellant Sobho and Ansanullah is rejected. If the appellants are not required in any other case they should be forthwith set at liberty.