' MUHAMMAD SIDDIQ, J.-The brief facts of the case, as alleged by the complainant Mamman P. W., are that on the day of occurrence, namely, 8-4-1974, at dopeharwela, Qamru Machhi of the village was celebrating the birth of his son by arranging a show of acrobats (nats) in the premises of the village primary School. Many persons of the village, including Jagdey deceased, complainant Mamman, Amir and Nawaz P. Ws. Were present in the said show. Jafar appellant came there armed with a 12 bore gun and challenged the deceased raising a lalkara and fired at him from a short distance. The deceased was hit by the fire-shot on the back of his left scapular region. After firing the shot, the appellant ran away carrying his gun with him. While going away, he is alleged to have re-loaded his gun after throwing the empty on the spot. Jagdey was still alive and was carried on a cot to Bhowana for medical aid. When the party carrying the injured reached the metaled road near the bus-stand and put the cot on the ground, they found that Jagdey had succumbed to his injuries. Complainant Mamman leaving the dead body there, proceeded to Police Station, Bhowana where he lodged the F. I. R. (Exh. P. A.) at 4-30 p.m. On the same day. S. I.
Muhammad Shafi P. W. After recording the report, reached near the bus-stand where the dead body was lying, and after preparing the injury statement (Exh. P. G.) and the inquest report (Exh. P.
H.) of the deceased, despatched the dead body to the mortuary for post-mortem examination.
Thereafter, he reached the place of occurrence and collected blood-stained earth from there and sealed it into a parcel vide Memo. Exh. P. E. He also took into possession empty cartridge (Exh. P. 2) lying on the spot and sealed the same into a parcel vide Memo. Exh. P. F. Jafar appellant appeared before the Investigating Officer on 9-4-1974, who arrested him. The appellant also produced gun (Exh. P. 1) along with the licence (Exh. P. 7) and the same were taken into possession and sealed into a parcel vide Memo. Exh. P. B. The Investigating Officer got the site plan (Exh. P. D.) prepared by Draftsman Ghulam Dastgir P. W. After the usual investigation, the police challaned the appellant under section 302, 'P. P. C. For the murder of Jagdey. He was tried by the learned Sessions Judge, Jhang. The appellant when examined under section 342, Cr. P. C. Denied the prosecution allegations. When asked why the P. Ws. Had deposed against him, he stated as under :- "Mst. Bakhan, wife of Mali, caste Lodhra, was molested by the deceased, who was a headstrong womanizer. Mali, husband of Mst. Bakhan, is my tenant. Nawaz is a brother of Mst. Bakhan and Falak Sher is her cousin. To avenge the insult, Nawaz, Falak Sher outraged the modesty of Mst. Kaniz, a sister of the deceased. They had come from my square and, therefore, the deceased had suspected that I had exhorted and it was at my instance that Nawaz and Falak Sher had insulted Mst. Kaniz. I have been falsely involved in this case because of enmity. The only two eye-witnesses produced in the case are Mamman, real brother of the deceased, and Nawaz, close relative of the deceased. Both of them are my enemies."
' The appellant, however, produced no evidence in defence.
2. Dr. Hafeezur Rahman on 8-4-1974, performed the post-mortem examination on the dead body of Jagdey and found the following injury on it :- ' A fire-arm wound 1-2 x 1-2 circular on the 7th intercostal space below the left nipple going deep into the chest, showing the wound of entrance. The wound of exit measuring l'x1" on the inferior angle of left scapula.
' Death in the opinion of the doctor was due to shock and haemorrhage. The injury was grievous in nature and was sufficient to cause death in the ordinary course of nature. Time between injury and death was within 30 to 60 minutes and between death and post-mortem examination within 12 hours.
3. The prosecution relied upon the ocular evidence, the motive, recovery of empty from the spot and the gun from the appellant, medical evidence and absence of the appellant from the school at the relevant time. The trial Court believed the prosecution version and vide the impugned judgment dated 23-1-1976, found the appellant guilty under section 302, P. P. C. For the murder of Jagdey and sentenced him to undergo imprisonment for life plus sentence of fine of Rs, 1,000 or in default thereof to suffer rigorous imprisonment for one year more. The fine, if realised, was ordered to be paid to the heirs of the deceased as compensation.
4. The appellant has challenged his conviction and sentences through the present appeal.
Mamman complainant has also filed Criminal Revision No, 405 of 1976 for enhancement of sentence, which was admitted for hearing and notice was issued to the appellant. This judgment will dispose of the present appeal as well as the Criminal Revision Petition.
5. The prosecution has produced Mamman (P. W. 2) and Nawaz (P. W. 3) as eye-witnesses of the occurrence. According to them, on the day of occurrence they along with the deceased and others were present in the premises of the village primary school where Qamru Machhi was celebrating the birth of his son by arranging a show of acrobats. Jafar appellant came there armed with a '12 bore gun. He challenged Jagdey deceased raising a lalkara and simultaneously fired at him from a short distance hitting him on the back of his scapular region. After that the appellant ran away.
Jagdey deceased was still alive and, therefore, was carried on a cot to Bhowana for medical aid, but he succumbed to his injuries on the way. In spite of lengthy cross-examination the defence has, not been able to shake the testimony of the eye-witnesses. They have fully supported the prosecution case. No doubt they are related to the deceased and inimical towards the accused party, but their statements are corroborate by other circumstantial pieces of evidence as discussed below. After careful scrutiny of their statements we are satisfied that these eye- witnesses have bee rightly believed by the trial Court.
6. In the circumstances of the case, the time and place of the occurrence are rather significant.
According to the prosecution, the occurrence took place in the premises of the village primary school where Qamru Machhi of the village was celebrating the birth of his son by arranging a show of acrobats (vats). S. I. Muhammad Shafi P. W. On reaching the place of occurrence, collected blood-stained earth from there and sealed it into a parcel vide Memo. Exh. P. E. He also recovered empty (Exh. P. 2) from the spot and sealed it into a parcel vide Memo. Exh. P. F. These recovery Memos. Are attested by Fateh Sher (P. W. 9) in addition to the Investigating Officer. Draftsman Ghulam Dastgir P. W. Prepared the site plan (Exh. P. D.) which shows the village primary school as the place of occurrence. We have minutely gone through the statements of these witnesses and find that the defence has not even suggested to any of the prosecution witnesses that the occurrence took place elsewhere and not in the premises of the village primary school. In the absence of any material on the record to show to the contrary, we entertain no doubt whatever that the occurrence in this case took place, as alleged by the prosecution, in the premises of the village school. As regards the time of occurrence, it is stated in the F. I. R. That the occurrence took place at dopehrwela on 8-4-1974. After the occurrence, the deceased was carried in an injured condition to Bhowana for medical aid. However, he succumbed to his injuries when they reached the metalled road and put down the cot on the road. Mamman complainant leaving the dead body under the charge of others, proceeded to Police Station, Bhowana, where the F. I. R. Was recorded at 4-30 p.m. On the same day, i,e, 8-4-1974. The Investigating Officer immediately reached the place where the dead body was lying and prepared the injury statement (Exh. P. G.) and the inquest report (Exh. P. H.) of the deceased and then despatched the dead body to the mortuary where the post-mortem examination was conducted by the doctor on the same day at 6-15 p.m. Thereafter, the Investigating Officer reached the place of occurrence and recovered the blood-stained earth and the empty cartridge and took them into possession on the same day.
Although the learned defence counsel does not seriously doubt the time of occurrence, yet relies upon a question suggested in cross-examination to Mamman complainant that the deceased was murdered in the early hours of morning, but the witness denied the same. According to the post- mortem examination report, the small intestines of the deceased contained semi-digested food.
The learned defence counsel has not been able to explain how semi-digested food could be found in the small intestines if the deceased had been murdered in the early hours of morning. Thus the contents of the small intestines belie this defence suggestion. Moreover, since admittedly the murder was committed by a fire-shot, the same could not remain unheard, but it could be heard by the whole village. If the deceased was fired at in the early hours of morning, the people would be immediately attracted to the spot and since the deceased did not die on the spot, to provide medical aid, he would be immediately carried to the hospital at Bhowana. The subsequent events do not support this defence suggestion. As mentioned above, the complainant leaving the dead body on the metalled road, lodged the F. I. R. At 4-30 p.m., the Investigating Officer reached the spot and after preparing the injury statement and inquest report, despatched the dead body to the mortuary and the post-mortem examination was conducted on the same day at 6-J5 p.m. If the occurrence had taken place early in the morning and the deceased was immediately removed towards the hospital, the dead body could not be kept on the road side till late in the evening and the post-mortem examination must have been conducted much earlier. If the deceased was murdered in the early morning, then there was no sense in carrying the dead body to the metalled road where it was found lying by the Investigating Officer and the injury statement and the inquest report were also prepared there. We have already held above that the occurrence took place in the premises of the village primary school. The defence has not indicated or suggested the occasion for the deceased to be present in the village school at such early hour of the morning. After taking into consideration the relevant facts and circumstances, we have reached the conclusion that the occurrence took place at dopehrwela as alleged by the prosecution and not at the time as suggested by the defence.
7. It is vehemently contended by Mr. Khalid Ranjba, the learned counsel for the appellant, that there is no reliable evidence on the record to show beyond reasonable doubt that Jafar appellant committed the murder of Jagdey deceased. According to him, the two eye-witnesses produced by the prosecution are interested, related to the deceased and inimical towards the accused and their statements are belied by the medical evidence. According to the ocular evidence, the deceased was hit at the left side of the back and there was no exit of this wound, while according to the doctor who performed the post-mortem examination, the deceased had an entry wound on the front side of the body below the left nipple and its exit was on the back side of the body near the inferior angle of left scapula. In other words, according to the ocular evidence, there was only one entry wound at the back side of the deceased, while according to the medical evidence that wound was the exit and its entry was on the front portion of the body of the deceased. The stand taken by the prosecution from the very beginning is the same. It is mentioned in the F. I. R. By complainant Mamman as under :- {{URDU TEXT}} ' The Investigating Officer on reaching the place where the dead body was lying, prepared the injury statement (Exh. P. G.) and described this injury in the following words: {{URDU TEXT}} ' The Investigating Officer also prepared the inquest report (Exh. P. H.) and against column No, 10, described the wound in the following words :- {{URDU TEXT}} ' The eye-witnesses in their statements before the trial Court have stuck to the same position that the first shot hit the deceased on the back of his left scapular region. In cross-examination, Nawaz (P. W. 3) has categorically stated that the shot fired by the accused hit the deceased from behind and it did not make any exit wound. The Investigating Officer Muhammad Shafi P. W. Also stated as under :- "In the injury statement I noted that there was one wound on the back of the deceased. I have also stated so in the inquest report (Exh. P. H.)."
' From a perusal of the statements of the eye-witnesses and the Investigating Officer it is crystal clear that there was only one entry wound at the back of the deceased. On the other hand, Dr. Hafeezur Rahman P. W. Who performed the post-mortem examination, has described the wound of the deceased as under :- "A fire-arm wound 1-2" x 1-2" circular on the 7th intercostal space below the left nipple going deep into the chest, showing the wound of entrance. The wound of exit measuring 1" x 1" on the inferior angle of left scapula."
' Thus, according to the medical evidence, the entry wound was on the front portion of the body of the deceased, while its exit was at the back. We have to see whether in the circumstances of the case, the statement of the doctor is to be preferred over the ocular testimony or vice versa. Taking into consideration the special features of the case, we entertain serious doubts about the correctness of the description of the injury given by the doctor. The doctor when in the witness-box was shown the shirt (Exh. P. 3) and vest (Exh. P. 4) of the deceased, which the deceased was wearing at the time of post-mortem examination. The doctor after seeing the shirt and the vest of the deceased stated as under :- "I see vest (Exh. P. 4) in the Court. It has got a hole on its back side. There is no other hole in the said vest. I see shirt (Exh. P. 3). It has got one hole on the back and no other hole."
' It was at this stage that the trial Court reminded the doctor whether the shot could have been fired at the deceased from the back side and the following question was put to him and he replied as under :- "Q.--You have stated that there is one hole in the vest and one in the shirt on the back side. Could it be possible that the fire may have been made at the deceased from the back side ?
' A.-I had already given my opinion that the firearm wound had been made from the front side and the exit wound was on the back."
' At this stage the Public Prosecutor sought permission to cross-examine the doctor for the reason that there was no hole on the front of the shirt and vest. The defence counsel opposed this request.
The trial Court, however, allowed the Public Prosecutor to cross-examine the doctor as his opinion in the post-mortem examination report conflicted with the actual holes found in the shirt and vest of the deceased. In cross-examination by the Public Prosecutor, the doctor tried to explain his position and stated as under :- "I was examined before the Magistrate on 1st November 1974. I see my statement made before the Magistrate. It is recorded there that the shirt was with hole and the vest was also with hole. It is correct that I did not mention two holes in the vest or in the shirt. (The witness explains that by mentioning Urdu word `surakh' he meant `holes'. It is correct that it is not mentioned in the post- mortem report that the hole on the vest and the shirt were on the front side. It is incorrect that in fact the deceased was fired at on the hack side and I had intentionally recorded that the deceased was fired at from the front side."
' In cross-examination by the defence counsel the doctor has admitted as under :- "It is correct that the vest stands cut off and is not in a wearing position. The vest bears a cut mark on one side. The hole in the vest does not bear blood stains around it. The presence of the entry and the exit wounds on the person of the deceased must necessarily imply two holes in the shirt and the vest. The shirt as well as the vest had been cut off from the front side. It is possible that the holes on the front side of the vest and the shirt might have been cut off in the process of cutting of the vest and the shirt."
' We have given our anxious thought to the medical evidence and the ocular evidence. It is admitted even by the learned defence counsel that the deceased was wearing the shirt (Exh. P. 3) and vest (Exh. P. 4) at the time of occurrence and the dead body was carried to the mortuary in the same condition. After the post-mortem examination the doctor handed over the clothes of the deceased including the shirt (Exh. P. 3) and vest (Exh. P. 4) to the police and the same were taken into possession and sealed into a parcel vide Memo. Exh. P. J. The same shirt and vest were shown to the doctor in open Court by the learned Sessions Judge and after seeing these, clothes, the doctor made a positive statement that there was only one hole on the back of the shirt and vest and there was no other hole in these two clothes on their front side. It is not denied that if the statement of the doctor is accepted that there was entry wound on the front part of the body of the deceased and its exit at the back, then there must have been a hole in the shirt as well as the vest on their front sides. In other words, there should have been two holes in the shirt and the vest of the deceased one entry hole on the front side and the other exit hole on the back. The factual position boils down to this that according to the doctor, there were two injuries-one entry wound on the front part of the body and the other its exit at the back, while according to the shirt (Exh. P. 3) and vest (Exh. P. 4) of the deceased which he was wearing at the time of occurrence and post-mortem examination, there was only one hole in the shirt and the vest at the back and no hole on their front sides. In such a situation, we have to see who speaks the truth-the doctor or the clothes of the deceased. We feel that in the circumstances of the case, absence of any hole on the front side of the shirt P. 3 and vest P. 4 of the deceased, clearly belie the doctor's statement on this point and consequently the statement of the doctor regarding number and location of injuries of the deceased, can be discarded as being false. It is in such circumstances that it is rightly said that in such a case human beings may tell lie but not the articles.
8. There are other circumstances in this case which are relevant to support this inference.
According to the prosecution, the occurrence took place at dopehrwela and the deceased was carried in an injured condition on a cot up to the metalled road where he succumbed to his injuries.
Leaving the dead body there, Mamman complainant went to the police station and lodged the F. I.
R. (Exh. P. A.) at 4-30 p.m. The place of occurrence is at a distance of four and a half miles from the police station. Keeping in view the facts of the case and carrying of the deceased on a cot on foot from the place of occurrence up to the metaled road, it can safely be said that the F. I. R. Was promptly lodged without any loss of time, in which only one injury is mentioned at the back of Jagdey deceased. After recording the F. I. R., the Investigating Officer reached the spot and prepared the injury statement and the inquest report and in these documents only one injury at the back of the deceased is mentioned. In their statements under section 161, Cr. P. C., and subsequently before the learned Sessions Judge, the eye-witnesses and the Investigating Officer have categorically stated that there was only one wound on the back of the deceased. Thus, the eye-witnesses and the Investigating Officer have taken a consistent stand from the very beginning that there was only one injury at the back of the deceased. It is not denied that if there had been an entry fire-arm wound on the front portion: of the body of the deceased, it must have bled profusely and the front portion of the body and the clothes of the deceased must have been besmeared with blood. In such a situation, the injury on the front side of the body could not remain unnoticed or untraced. If somehow the complainant failed to see and mention this injury in the F. I. R., the Investigating Officer while preparing the inquest report and the injury statement after personal examination of the dead body, could not make such an obvious mistake. Now we have two types of evidence regarding the number and location of injuries of the deceased-one given by the eye- witnesses and the Investigating Officer and the other by the doctor. We have to see which is to be preferred over the other. No doubt, generally the evidence of the doctor is considered to be independent and more reliable and in case of conflict, can be given preference over the ocular evidence but this is not always true as there are always exceptions to it and there can be cases where ocular evidence can be given preference over the medical evidence, No generalization is possible in this behalf. Each case depends upon its own facts and ultimately it is the duty of the Court while assessing the entire evidence available on the record, to decide whether the medical evidence is more reliable or the ocular one. The statement of the doctor stands on the same footing as that of any other witness and may or may not be accepted by the Court. It may be observed that nowadays the statements of the doctors in some cases do not inspire the same amount of confidence as they should generally do. In the instant case it is not the opinion of the doctor regarding the cause of death of the deceased which conflicts With the ocular evidence but it is the observation of the doctor regarding location and number of injuries which differs with the ocular evidence. We have carefully considered the relevant material available on the record and are clearly of the view that the version given by the eye-witnesses and the Investigating Officer regarding the number and location of the injuries of the deceased should be given preference over the medical evidence.
' The demeanor of the doctor also goes against him. In view of the conflicting stand taken up by him before the trial Court, the Public Prosecutor was allowed to cross-examine the doctor. In the post-mortem examination report there is no mention of two holes in the shirt and vest of the deceased. The words used are {{URDU TEXT}} In cross-examination by the defence counsel, the doctor has tried to explain that by the word {{URDU TEXT}} he meant holes. If however actually there had been two holes in these clothes, the doctor could easily mention the word {{URDU TEXT}} .
In any case as mentioned above there was only one hole at the back of the said shirt and vest and not two holes, in each of them. Thus absence of any hole on the front side of the shirt and vest of the deceased, directly belies the version of the doctor and supports that of the eye-witnesses.
9. The motive alleged by the prosecution is that Jafar appellant along with one Manzoor son of Warrayam had outraged the modesty of Mst. Kaniz, a sister of Jagdey deceased. In retaliation, the deceased Jagdey insulted Mst. Sahib Bibi, phhuphi of Jafar appellant. The defence has not specifically denied the motive, but has admitted it in a different way. It is in the statement of the appellant under section 342, Cr. P. C. As well as suggested to the prosecution' witnesses in cross- examination that Mst. Bakhan wife of Mali caste Lodhra a tenant of the appellant, was molested by the deceased. Nawaz a brother and Falak Sher a cousin of said Mst. Bakhan to avenge the insult, had outraged the modesty of said Mst. Kaniz, but since they had come from the appellant's square, the deceased had suspected that the appellant had exorted them and it was at his instance that they had insulted said Mst. Kaniz. This suggestion has been categorically denied by the prosecution witnesses and otherwise does not appeal to common sense. The motive alleged by the prosecution is clearly mentioned in the F. I. R. Promptly lodged and is also supported before the trial Court by complainant Mamman, Amir and Nawaz P. Ws. We have carefully examined the relevant material available on the record and find that the motive has been rightly believed by the trial Court.
10. The trial Court has also used the absence of the appellant from the school at the time of occurrence as corroboration. We are not inclined to take this circumstance into consideration for the simple reason that the same was not put to the appellant in his statement under section 342, Cr. P. C.
11. Another circumstance which goes in favour of the prosecution and against the defence is the taking of licence for 12 bore gun by the appellant. This licence was sanctioned to the appellant on 31-12-1973, when he was a student of 9th class and of tender age. It is contended by the counsel for the State that the appellant got this licence only to commit this murder otherwise there was no justification for a student of that age to get a licence of a '12 bore gun in a District like Jhang. This also shows the influence of the family over the local authorities and as alleged by the complainant it may be for the same reason that they manoeuvred to get favourable report from the doctor regarding number and location of injuries of the deceased. The learned counsel for the appellant has not been able to offer any plausible explanation to justify the licence of a gun for a student of such a tender age.
12. According to the learned counsel for the State recovery of empty cartridge from the spot and the licensed gun of the appellant matching with it, has been wrongly disbelieved by the trial Court on the ground that the complainant Mamman had not mentioned that any empty was left at the spot. Although this piece of evidence can be believed, yet since the learned Sessions Judge has expressed the view against the prosecution, we feel that safer course is to keep the same out of consideration.
13. Although the appellant in his statement under section 342, Cr. P. C. Had taken up a plea, yet the same was not seriously pressed by the learned defence counsel during his arguments. The appellant has stated that Mst. Bakhan, wife of Mali, a tenant of the appellant, was molested by the deceased who was a head-strong womanizer. To avenge this insult, her brother Nawaz and cousin Falak Sher outraged the modesty of Mst. Kaniz, a sister of the deceased. Since they had come from the square of the appellant, the deceased had suspected that the appellant had exorted them and it was at his instance that they had Insulted Mst. Kaniz. According to the defence suggestion the said relatives of Mst. Bakhan may have killed the deceased. We have given our anxious consideration to this suggestion of the defence, but find no substance in it. This occurrence took place in broad daylight in the village school where many persons had gathered to see the show of acrobats. It is a single accused case. If the murder had been committed by someone else, the appellant who was a student of tender age, could not be substituted and the real culprit could not be allowed to go scot-free. Moreover in such circumstances substitution is not possible. Keeping in view the time and place of occurrence and the assailant being single person, we do not entertain slightest doubt in our mind that it was the appellant alone who committed this murder and none else.
14. After hearing the counsel for the parties at considerable length and going through the entire material available on the record, we have reached the conclusion that the prosecution has established the guilt of the appellant beyond any shadow of doubt, through the ocular evidence duly corroborated and supported by the time and place of occurrence, presence of only one hole at the back of shirt and vest of the deceased, the motive and taking licence of 12 bore gun by the appellant. He has been rightly convicted and sentenced by the trial Court under section 302, P. P. C.
For the murder of Jagdey deceased. We also maintain his conviction and sentence.
15. We find no legal justification to enhance the sentence of the appellant, keeping in view his tender age and molestation of his phhuphi Mst. Sahib Bibi by the deceased.
16. The result is that both the Criminal Appeal No, 174 of 1976 and Criminal Revision No, 405 of 1976 have no substance and the same are hereby dismissed.