' ALI NAWAZ CHOWHAN, J.--- This judgment shall dispose of Criminal Appeal No,99 of 1985 under section 417, Cr.P.C. Which has been instituted by the State against an order of acquittal as well as Criminal Revision No,36 of 1986 to the same effect filed by Muhammad Ayub complainant in this case. Both these are against the judgment, dated 20-4-1985 handed down by Mr. Saleem Aftab Sheikh, Additional Sessions Judge, Rawalpindi. Who had acquitted the respondents while giving them benefit of doubt.
2. The matter relates to case F.I.R. 200, dated 9-10-1977 registered under sections 302/307, P.P.C. At Police Station Sangjani, District Rawalpindi.
3. Muhammad Ayub complainant (P.W.1) is a resident of village Kot Kohlian. According to his testimony, on 9-10-1977 at about 5-00 p.m., he alongwith Ghulam Rasool P.W. Were present on the eastern side of the mosque in the village and were in conversation with each other. That Maula Bakhsh P.W. And Muhammad Yagoob deceased emerged from the house of Sher Dil, a barber of the village. When the respondents Muhammad Aslam and Muhammad Muslim, both of whom were armed with .12 bore guns, came out of a house. That they raised Lalkara, saying that the deceased and Maula Bakhsh P.W. Should not be safe. On hearing Lalkara, the deceased and Maula Bakhsh P.W. Looked around when Muhammad Aslam respondent fired at Muhammad Yagoob hitting him on the chest. The respondent Muhammad Muslim then fired with his gun which also hit the deceased on the chest. At which Muhammad Yaqoob fell down. Muhammad Aslam respondent aimed at Maula Bakhsh P.W. Hitting him on his chest. He too fell down. That when he and his accompanying witness Ghulam Rasool raised alarm, many women and men came out. That the respondents on seeing them firstly threatened them and asked them to keep away and then went away alongwith their guns. It was then discovered that Muhammad Yaqoob had expired and Maula Bakhsh P.W. Was injured. The complainant leaving Ghulam Rasool (P.W.5) and Lal Khan (P.W.10) at the spot for taking care of the injured and the dead body, proceeded to the police station for lodging of the F.I.R. That while he was still on the way, he met Khaliq Khan, Inspector (P.W.11) at Tarnool and to whom he reported the matter. On the basis of a statement Exh.P.A., the F.I.R. Was later registered.
4. Giving the motive part of the story, Muhammad Ayub stated that there was a dispute of land between the father of the' deceased and the respondents. That there was also litigation between the respondents and his family since about 30 years and quite recently a suit for possession had been instituted by him against the accused party. The accused had wrongfully taken possession of his land. He later returned to the spot with the police and to his presence, blood-stained earth was picked from the spot and made into a parcel through memo. Exh.P.D. Which bears his signatures.
5. Maula Bakhsh (P.W.2) is the injured P.W. Who supported the prosecution case as narrated by Muhammad Ayub complainant, while also stating that he received injury at the hands of the respondent. He also has enmity with the respondents on account of land. However, he denied implicating the respondents in this case on account of his enmity. Although he admitted that he had been involved in a murder case at the instance of the respondent Muhammad Aslam but had been later discharged. It also appears that the respondent' Muhammad Aslam had been appearing against him in some cases. During his cross-examination, it came to light that he was involved in criminal litigation. He himself does not have a house in the village where the occurrence took place. Whereas his relations live there. While he was in an injured state, he could not be provided with first aid until at about 11-00 p.m. When the police came. He was removed with the dead body in a Suzuki van to the hospital. He went on to say during cross-examination that people of the street had gathered there on hearing the fire shots.
6. Ghulam Rasool (P.W.5) supported that prosecution case, 'both with respect to the occurrence and the motive. Through his statement, it transpired that the deceased and Muhammad Ayub P.W.
Were related to each other and that he had been a co-accused with Maula Bakhsh P.W. In 2 or 3 cases. His house is located at a distance of about 600 paces from the place of occurrence, which one reaches after walking through several streets. While Muhammad Ayub complainant, according to him, lived nearer the place of occurrence that is 200 feet. He happened to be there because he had to fetch fodder for the cattle from his land towards the western side of his house. Whereas according to him Muhammad Ayub came out of the mosque. According to this witness, there had been repeated investigation in this case, in which he had been associated and that the respondent Muhammad Muslim throughout was steadfastly pleading his innocence, by stating that he was not present in the village at the relevant time having gone to attend a marriage in Rawalpindi. This witness admitted during cross-examination that those investigations did not find any material against Muslim accused.
7. Incidentally, it may be mentioned that the counsel for Muhammad Aslam respondent did not cross-examine all these three eyewitnesses. Rather he made a statement, stating that he, would rely on a previous cross-examination. It appears that the witnesses were previously cross- examined before thi3 case was retried by the present trial Court but such portions of the cross- examination have not been brought on this file.
8. Dr. Muhammad Siddique (P.W.12) had conducted the postmortem examination on the dead body of the deceased Muhammad Yaqoob which had been brought to him at 8-00 a.m. On 10-10- 1977. He found it to be the dead body of a healthy man. There was bleeding from the mouth and nostril. Rigor mortis was present all over. Post-mortem staining was present over the back. The shirt had cut holes and clothes were blood-stained. His observations about the dead body and regarding the injury which it suffered and which have been reflected in his testimony before the trial. Court were as follows:--
(1) A circular fire-arm wound of entry on -front of chest left side 3" inner to the left nipple at its level and at 9'O clock position. The wound had penetrated through and through the root of arch of sorta and left auricle and passed through the left lung posteriorly and then lodged under the skin on back of chest left side from mid line middle from where a large size lead pellet was dissected out.
The left chest cavity was full with blood.
(2) A fire-arm wound of entry 1/4" diameter on right side front the abdomen lower part 5" from the umbilicus and at 7'O Clock position. The wound had penetrated the small intestines at two places and iliac colon through and through the iliac blood vessels and deeply embedded in the iliac bone from where it was dissected out.
(3) A circular fire-arm wound of entry 1/4" diameter on left side front of abdomen lower part 3" from the umbilicus and at 5'O Clock position. The wound had pierced the small intestines at many places and deeply lodged in the body of 4'h lumber vertebra. The abdomen cavity was full with blood.
(4) A circular fire-arm wound of entry 'A" diameter on front middle of left arm, the arm bone was broken into pieces underneath and a pellet was found on back lower middle part which was dissected out.
(5) A fire-arm wound of entry with grazing 1" x 1" on front inner side left elbow joint, the wound was continuous with a wound ok exit under the skin 1/3" x 1/3" on back of elbow and 1-1/4" from the entry wound.
' The left pleura and lung, heart, root. Of arch of arota peritoneum intestines, as stated above were injured. The stomach was healthy and contained about 5 ounces of half digested food. Blood and faecal matter was present in the intestines. Urinary bladder was healthy and contained about 2 ounces of urine.
' The cause of death in my opinion was severe shock and haemorrhage as a result of extensive injury to heart, root of arch of arota, intestines and right aliac blood vessels under injuries Nos.1, 2 and 3 which were sufficient to cause death in the ordinary course of nature individually as well.
Injury No,4 was grievous.
' All the injuries were caused by fire-arms and were ante-mortem. The probable time between injury and death was immediate and between death and post-mortem with 15 hours."
' During cross-examination, he stated as follows:-- "possibility cannot be excluded that if the shot from the .12 bore gun is fired from a distance of at least 30 feet on the injured Maula Bakhsh and Yaqoob deceased when they were at a distance of about 3 feet from each other that they sustained these injuries as a result of one fire. It is correct that keeping in view the condition of the rigor mortis found on the person of Yaqoob deceased the time in between the death and the post-mortem examination can be about 12 hours. Possibility cannot be ruled out that the death occurred in the early hours of the preceding night when the post-mortem examination was conducted, keeping in view the semi-digested food in the stomach faecal matter and urine. The time given by me between death and post-mortem i,e, 15 hours can be stretched towards about 12 hours. The time between the receipt of injuries on the person of Maula Bakhsh and his examination by me can be about 8 hours as well. It is correct that after sustaining injury Maula Bakhsh must have bled and stains were found on his clothes."
' Exh.P.N. Is the correct carbon copy of the post-mortem examination and Exh.P.N./1 is the sketch of injury. He also recovered 4 lead pellets of large size from the body which were sealed in a bottle and handed over to the police.
9. On 10-10-1977 at about 2-00 a.m. Dr. Muhammad Siddique (P.W.12) had also conducted the medical examination of the injured Maula Bakhsh and found the following injury on his person:-- "A circular fire-arm wound of entry 3/10" x 3/10" on left iliac crest 2" from the anterior iliac spine, the wound was continuous under the skin with a wound of exit 3/10" x 3/10" and 2-1/2" behind the wound of entry. There was grazing 1/4 x 1/2" on the posterior margin of the entry wound. Corresponding cut hole were present in the shirt and blood-stained Shalwar. Clothes were marked and signed for police. X-ray of left iliac crest was advised. The injury was kept under observation caused by firearm within a period about 10 hours. Exh.P.M. Is the correct carbon copy of my M.L.R. Which is in my hand and signed by me."
10. Among the formal witnesses were Muhammad Azam, A.S.-I. (P.W.3) who recorded the F.I.R. On the basis of the complaint Exh.P.A. Muhammad Akbar (P.W.4) had taken Maula Bakhsh P.W. To the Civil Hospital and received his clothes which he was wearing and which later were given to the Sub-Inspector vide memo. Exh.P.C. During cross-examination, he stated that he reached the place of occurrence at 10-00 p.m. And he was asked to take Maula Bakhsh to the hospital at 11-30 p.m. In a separate Suzuki as the other one had carried the dead body. Ghulam Safdar (P.W.6) had carried the dead body for post-mortem examination. Muhammad Iqbal constable (P.W.7) had also escorted the dead body to the hospital and he had received its last-worn clothes which he handed over to the Investigating Officer vide memo. Exh.P.D. He also took the parcels to the office of the Chemical Examiner and Forensic Science Laboratory, Lahore. Muhammad Akram (P.W.8) is a draftsman who prepared the site plan Exh.P.E. In triplicate while scribing his notes in black at the instance of the police. Ejaz Ali (P.W.9) is a carrier of parcels to Forensic Science Laboratory, Lahore.
11. Lal Khan (P.W.10) is a witness of recovery of gun which Muhammad Muslim respondent produced on 13-10-1977 to the police. This was his licensed gun and was taken into possession vide memo.
Exh.P.F. He also witnessed the recovery of a gun P.7 which was .12 bore and which was recovered at the instance of Muhammad Aslam respondent vide memo. Exh.P.G. From his house where it had been concealed.
12. It may be mentioned that like in case of the eye-witnesses, the aforementioned formal witnesses were not cross-examined during the retrial by learned counsel for the respondent Muhammad Aslam.
13. Abdul Khaliq Khan, Inspector (P.W.11) went on the spot on 29-10-1977 after recording the statement of the complainant Exh.P.A. Where he prepared the inquest report Exh.P.H. And injury statement Exh.P.J. Of the deceased. He collected blood-stained earth (Exh.P.B.). He got the site plan Exh.P.E. Prepared while writing his notes in red ink. He also got the statements of the witnesses recorded. At his instance, Maula Bakhsh was medically examined. He also took into possession the last-worn clothes of the deceased. He effected recoveries from Muhammad Aslam respondent.
Whereas he received the gun produced by Muhammad Muslim respondent. He arrested the accused. According to him, he placed Muhammad Aslam respondent in Column No,2 in the charge-sheet because a large number of respcctables of the area had appeared to support his plea of alibi.
14. During his cross-examination, he revealed that in column 1 of the inquest report Exh.P.H., he did not show the place of occurrence or the presence of the dead body as shown in the site plan. Nor he mentioned about the type of weapon used. He stated that no empty was recovered from the spot during the investigation and that the inquest report was not signed by any of the eye- witnesses. He also did not find any pellet marks on any wall of the street. He further stated that his spot inspection showed that the deceased had not exactly fallen at the place where he sustained the injuries rather at a distance of about 6 feet from there. But he admitted that the site plan was prepared on the pointation of the eye-witnesses. He could not tell whether Maula Bakhsh P.W. Had been a criminal registered with the police station. That after his visit to the spot, he went to the house of the respondent Muhammad Aslam for arresting him and whom he could arrest on 13-10- 1977 and effect recovery of gun from him on 10-10-1977.
15. In their statements under section 342, Cr.P.C. The case of both the respondents was one of denial. According to them, they have been involved on account of enmity.
16. Muhammad Aslam respondent appeared as his own witness to state that he knew nothing about the murder of Muhammad Yaqoob and that he had been falsely involved. Whereas he had taken up his residence at a place two miles away from the place of occurrence. During his cross- examination, he admitted about the factum of litigation and also the fact that he has a house at a place of occurrence and the spot where the deceased was killed. He stated that he appeared voluntarily before the police on 11-10-1977. When questioned as to his involvement in a number of criminal cases, his answer was evasive as he stated that he did not remember if he was involved in those cases. But he went on to say that he did not through any application to the police take up a defence plea before the police.
17. Muhammad Muslim respondent also appeared as his own witness in support of his plea of alibi.
18. The learned trial Court had discarded the testimony of the eyewitnesses Ghulam Rasool and Ayub on the ground that there were inimically deposed towards the respondents. The learned trial Court also disbelieved the injured Maula Bakhsh on the same ground. The next reason for disbelieving the prosecution case was on the ground that the timings of the occurrence as suggested by the prosecution clashed with the medical evidence and, therefore, were unacceptable. While theorizing that the occurrence must have taken place at the middle of the night and was not seen.
19. The prosecution version that the occurrence had taken place at about 5-00 p.m. Was, therefore, disbelieved.
20. The statement in cross-examination of Dr. Muhammad Siddique (P.W.12) has been reproduced in extenso (ibid) and it is clear that the doctor himself was only speaking of probabilities and was never absolutely certain about the timings. The view of the doctor on the aspect of rigor mortis is also not absolutely correct or conclusive because the timings of the rigor mortis on setting in and off setting could be different keeping in view the weather, health and such-like other factors.
Reference in this connection may be made to Modi's Medical Jurisprudence and Toxicology Chapter VI, 21 Edition pertaining to cadaveric changes in the muscles. According to Modi, after the death the muscular tissues of the body pass through three stages:--
(1) Primary relaxation
(2) Cadaveric rigidity or rigor mortis
(3) Secondary relaxation.
' According to him, soon after the death the whole muscular system commences to relax unless of course, muscles have been in a condition of spasm. That this stage lasts from three to six hours but the average is about two to three hours. Rigor mortis occurs when the body is cooling. It first appears in the involuntary muscles and then in the voluntary. That time of onset of rigor mortis varies in different cases and on the average the period of the onset could be three to six hours after death and may take two to three hours to develop. It is his opinion that when rigor mortis sets in early it passes off quickly. And it sets in 1 to 2 hours and develops in about 12 hours. It remains for about 12 hours and passes off in about another 12 hours. Therefore, Medical Officer has to give clues with respect to the timings of death. Which clues are not sufficiently available in the statement of Dr. Muhammad Siddique (P.W.12). The conclusions in this respect of the learned trial Court are, therefore, abrupt and non-scientific rather imaginary.
21. Even with respect to the semi-digested food discovered in the stomach of the deceased, the learned trial Court, it appears, had strained itself in stretching the timings to the advantage of the defence. Although there was no evidence to suggest at what time the food may have been taken by Muhammad Yaqoob deceased. And lastly the view of the learned trial Court that the villagers take their food usually at a particular time too was conjectural.
22. It is settled law that the opinion of a doctor as to the time of death of the deceased is never a conclusive piece of evidence on this 'point rather such an opinion is conjectural. And whenever there is a clash between the time of death as given by the P. Ws. And the one given by the doctor, the testimonies of the eye-witnesses while keeping in view the circumstances of the case are worthy of credence. Even with respect to the statement of a doctor about the timings based on presence of semi digested food in the stomach of the deceased does not lead to the conclusion that the timings given by the doctor if different than the timings given by the informant render the latter's testimony of no value. Reliance in this connection may be placed on Haji and 4 others v. The State 1972 PCr.LJ 465, Abdur Rehman v. The State 1983 PCr.LJ 2462 and Ghulam Hussain and 5 others v. The State 1984 PCr.LJ 1807.
23. It seems that the learned trial Court had been conjecturing rather it made a jumble crochet of facts and came to the conclusions which were conjectural and devoid of reason and logic. At the same time, we felt that the learned trial Court kept itself indifferent to the fact that there was promptitude shown in the registration of the F.I.R. Which nominated the accused and also the facts that the place of occurrence was in the thick of village Abadi and there was an injured eye-witness and he had to weigh all these facts for giving a findings based on reason, common sense and, logic.
24. The learned counsel appearing on behalf of the respondents was of the view that Muhammad Yaqoob deceased had been done to death in a depression in a Nullah close to the place of occurrence and the dead body may have been brought there. This again was conjectural and is not supported by the evidence at all. The blood-stained earth was picked from the place close to the house of Sher Dil barber as shown in the site plan and there is no cogent contradiction against this fact. Except the suggestion to the Investigating Officer that the blood may have been picked from four spots. There is nothing to suggest how far those spots were. However, the statement of the Investigating Officer that, the deceased had succumbed and fallen at a distance of six feet away from where he was injured explains this position.
25. One wonders on what logical basis the learned trial Court could have overlooked the evidence of the injured P.W. Maula Bakhsh. Whose injury could also have been fatal being in the stomach.
Even if he was inimical towards the accused on account of land litigation, the person injuring him would rather be a worse enemy and substituting him for the respondents does not appeal to the common sense.
26. Discarding the testimony of Muhammad Ayoub also appears illogical although he may have been opposed to the respondents but during his cross-examination he candidly mentioned that the police could not collect any evidence against Muhammad Muslim respondent although the P.W. Was equally inimical towards Muslim.
27. The testimonies of even inimical witnesses are not to be set aside with a stroke of pen. The criminal jurisprudence requires weighing of all circumstances and facts and sifting the grain out of the chaff as the motive cuts both sides. If on one hand enmity is taken as a defence plea, the prosecution also has equally and cogently this plea to offer. Reliance in this connection may be placed on Shahzado v. The State and 8 others PLD 1977 SC 413.
28. Whereas we find that Muhammad Muslim respondent had been pleading his innocence throughout and there is a possibility of one assailant causing injury to Maula Bakhsh and the deceased Muhammad H Yaqoob although initially Muhammad Muslim was also placed in column 2 of the challan, but he was tried by the trial Court. We feel there were ground for giving him benefit of doubt and which we extent to him.
29. However, the case of Muhammad Aslam respondent is different. Which is established by the eye-witnesses and there is no defence evidence on the file to the contrary. We, therefore, feel that the judgment of acquittal as far as he was concerned was exceptionable. We reverse it.
30. The next question would be whether under the circumstances of the case, he was entitled to any leniency. Moreso because of legitimate expectancy of life after having been acquitted several years back that is on 20-4-1985. We have given a serious thought to this proposition and after placing reliance on Raheem Bakhsh v. Abdullah Subhan and another 1999 SCM R 1190 have come to this irresistible conclusion that he cannot be extended any concession.
31. Incidentally it may be pointed out that the matter relates to the year 1977 when the amendments in the law were not there and so the old law shall apply.
32. We, therefore, accept the appeal of the State and convict Muhammad Aslam respondent under section 302, P.P.C. To death. He shall further pay compensation of Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in lieu thereof suffer 6 K months' S.I. He is also convicted under section 307, P.P.C. For the murderous assault on injured P.W., Maula Bakhsh, and sentenced to 7 years' R.I. He shall also pay compensation of Rs,20,000 to Maula Bakhsh, P.W., under section 544-A, Cr.P.C. And in default shall suffer simple imprisonment for 2 months. He is on bail and shall be taken into custody for undergoing his sentence. The appeal as far as Muhammad L Muslim, respondent is concerned is dismissed. The criminal revision filed by the complainant is disposed of accordingly.