' ASLAM RIAZ HUSSAIN/, J.-Sardar Baig appellant, aged 61 years, was tried along with Anwar Baig, Hidayat Baig, Saratar Baig and Natha Baig for offences under sections 48 and 302/307/149, P. P. C.
For the murder of Sharif Baig and causing gunshot injuries to Afzal Baig (P. W. 8), Aslam Baig (P. W.
9), Ashraf Baig (P. W. 10), Siddique Baig (P. W. 11) and Atal Baig (P. W. 12). The learned trial Judge (Additional Sessions Judge, Lahore at Kasur) by his judgment dated 4-8.1972, acquitted the four co-accused but convicted Sardar Baig appellant of offences under section 302/307, P. P. C. He sentenced him to death under section 302, P. P. C. And to 7 years' R. I. And a fine of Rs, 500 on each count under section 307, P. P. C. In default of payment of fine he was ordered to undergo further R. I.
For a period of 6 months on each count. Ali the sentences were ordered to run concurrently. The fine, if realised was ordered to be paid to the injured P. Ws.
2. He has filed an appeal against his conviction and sentences. The case has also been referred to us under section 374, Code of Criminal Procedure for confirmation of the death sentence awarded to him. We propose to dispose of the appeal and the murder reference by a single judgment.
3. The facts of the prosecution case are briefly as follows :- ' Both the parties are admittedly related to each other. On 19-10-1969, there was a fight amongst the children of the parties on which the womenfolk of the parties also quarrelled. This created certain amount of tension as a result of which, on the next day, the women-folk of the accused party as well as Hidayat Baig (acquitted accused), gave a beating to Mst. Zubaida Begum (P. W.
13), the wife of Afzal Baig (P. W. 3). This resulted in future trouble between the parties. On the next day (i,e, 21-10-1969). Afzal Baig P. W. Saw Anwar Baig (one of the acquitted accused, taking a bath at a well situated near the village mosque. He complained to Anwar Baig about the beating given by Hidayat Baig and the ladies of his family to his (Afzal Bait's) wife. Anwar Baig replied that he would talk to him after inquiring into the matter. He then went towards his house while Afzal Baig P.
W. Remained there. Shortly afterward Anwar Baig (acquitted accused) returned and asked him to accompany him to the haveli of Rustam Baig, which is adjacent to his own (Afzal Baig's haveli), with only a street intervening. Hidayat Baig, Natha Baig, Sarwar Baig (acquitted accused) as well as Sardar Baig appellant also came there. So did Aslam Baig P. W. 9 and Ashraf Baig P. W. 10 the brothers of Afzal Baig P. W.
8. The conversation deteriorated into an exchange of hot words between the parties and Ashraf Baig P. W. Asked his brothers to leave the haveli and go out. When they got up from the spot Anwar Baig (acquitted accused) signalled to Sardar Baig appellant and the latter slipped away. Afzal Baig P. W. Etc., came out of the haveli. In the meanwhile Sardar Baig appellant brought his '12 bore gun and ascended the kotha of Rustam Baig. Anwar Baig, Sardar Baig, Hidayat Baig and Natha Baig, who had in the meanwhile picked up .Rotas, exhorted him to fire. Sardar Baig appellant then fired two shots at Afzal Baig, Aslam Baig and Ashraf Baig P. Ws. Which hit them. The door of their house was open and they rushed in and sought refuge. Sharif Baig deceased was still standing outside the door of the house of Afzal Baig P. W. (which is shown at point No, 3 in the site plan Exh. P. J.).
After a short while Sardar Baig appellant fired two more shots which hit the deceased. On hearing these shots Afzal Baig, etc., P. Ws. Also came out. Sardar Baig appellant also shot at them. It is alleged that after being hit, Sharif Baig deceased ran towards the north and fell down and died in front of the shop of Nazir at a distance of about 77 feet from the place where he was hit. Afzal Baig, Aslam Baig, Ashraf Baig, Siddique Baig and Atal Baig P. Ws. Nos. 8 to 12 were injured and were got medically examined.
' Hussain Baig P. W. 14 reported the matter to Muhammad Yusuf A. S.
1. (P. W. 18) of Police Station Bhai Pheru. The latter recorded his statement Exh. P. H. At the bus stand near the police station at 8-45 a.m. The formal F. I. R. Exh. P. H./1 was recorded at the police station at 8-55 a.m. Sardar Baig appellant was arrested on the same day by Muhammad Yusuf A. S. I. The A. S. I. Recovered a key P. 1 from his pocket which was taken into possession vide memo. Exh. P. C.
The appellant then led the Investigating Officer to his house which was locked. The lock (P. 5) was opened by key P. 1 recovered from the appellant and a licensed 12 bore gun, P. 2 along with a bandolier P. 4 which contained 10 cartridges P. 3/1-10, belonging to Anwar Baig (acquitted accused) were recovered at the appellant's instance and were taken into possession vide memo. Exh. P. D.
Lock P. 5 was taken into possession vide memo. Exh. P. E. On the same day the Investigating Officer also recovered 7 12 bore empty cartridges P. 6/1-7 from the roof of the house of Rustam Baig from where the appellant is said to have fired at the deceased and the injured P. Ws. The same were taken into possession vide memo. Exh. P. F. These were later found by the Ballistic Expert to have been fired from gun P.
2. Ali the recoveries were witnessed by Qasitn Baig P. W. 5, Muhammad Yusuf A. S. I. P. W. 18 and Chiragh, who was not produced as he is said to have been won over.
4. Dr. Muhammad Akram (P. W. 1), Medical Officer, Civil Hospital, Chunian performed the post- mortem examination on the dead body of Sharif Baig at 8-15 a.m. On 22-10-1969, and found the following injuries on his person :-
(1) One gunshot inlet wound circular with a new pace size with a Glad( inverted margins on outer middle right forearm with corresponding outlet gunshot wound half inch x 1" on inner middle right forearm passing through and through the forearm. Right ulna bone was completely fractured underneath. (2) One gunshot inlet wound grove-shaped 1" x 1/10' black inverted margins on left middle neck passing through and through superficial muscle of the neck with corresponding outlet gunshot wound with averted margins circular of a small nail-head size on the back outer aspect of left neck with 2i" distance n-between two wounds. (3) 23 pellet marks black each nail-head size ,tattered on front. Of left shin and calf on middle upper part. Ali were superficial with no pellet inside. (4) One inlet gunshot wound of a new pice size circular with black inverted margins on front middle chest on the central line penetrating into the chest with no corresponding outlet wounds.
Pericardium of heart, heart itself, right pleura and lung were ruptured underneath. Right chest cavity was full of blood Sternum on front and eighth, ninth right ribs were fractured on the back.
One large pellet was removed which was retained in the muscles of eighth and ninth ribs. It was sealed in a separate bottle. (Note.-The italics are ours).
' The doctor opined that injury Nos. 1 and 4 were grievous and dangerous to life and were sufficient to cause death immediately, specially injury No,
4. He stated further that the probable time between the injuries and death was `immediate'. During the cross-examination the doctor stated that :- "The branch of superior venacava which feeds the heart and lungs was ruptured. Due to the rupture of venacava the blood supply to the organs was instantaneously discontinued. The death was instantaneous. It is incorrect if it were suggested that the deceased after having sustained the injuries described above could have walked."
5. The five injured P. Ws. Were also medically examined but it is not necessary to mention their injuries in detail, and it would be sufficient to mention that each one of them had a number of pellet wounds on his person. They were examined by Dr. Mushtaq A. Sheikh, but since he was not available at the time of the trial, their medical reports were got proved through Abdul Ghani, Senior Clerk, Record Office, Mayo Hospital, Lahore.
6. After the investigation of the case all the accused were challaned and were committed to stand their trial before the Court of Session.
7. At the trial the prosecution produced as many as 19 witnesses. The prosecution evidence consists of the following categories: (i) the evidence of motive; (ii) the ocular evidence; (iii) the evidence of the recovery of gun P. 2 and empty cartridges P. 6/1-7 read with the report of the Ballistics Expert, and (iv) the medical evidence.
8. The appellant, when examined, admitted the occurrence but gave the following version of the same :- "Sharif Baig deceased was my maternal cousin. His wife was the heir of Diwan Baig. Complainant party was interested in getting the land left by him. In this connection 1 was siding with Sharif Baig deceased, who resisted the mutation of the land in favour of the opposite-party, which had annoyed them. The dispute regarding the mutation of the land between Sharif deceased and the complainant party resulted in the exchange of firing on the day of occurrence in consequence thereof Sharif Baig died and in the firing the persons of the complainant party were also injured, As they were in the group that made me a scapegoat."
' Seven witnesses were produced in support of the defence version. Rehmat Khan D. W. 1, Muhammad Uzair D. W. 2, Niaz Muhammad Khan Niazi D. W. 4, Khewna D. W. 5 and Ramzan Baia D.
W 6 have been produced as witnesses of alibi of Natha Baig, Anwar Baig, Hidayat Baig and Sarwar Baig co accused and have stated that, at the relevant time, they were at places other than the place of occurrence. Since all the aforementioned co accused have been acquitted, the evidence of these D. Ws. Is no longer relevant. Abdul Aziz D. W. 7 is a Draftsman who prepared the site plan Exh. D. J. Which is not very different to the site plan placed on the record by the prosecution. D. W. 3 is Dr. Abdul Aziz Khan, Ex-Professor of Surgery and Professor, Fatima Jinnah .Medical College, Lahore, whose evidence shall be referred to presently.
9. We have heard the learned counsel for the parties at length and have also gone through the entire record. Since the occurrence is admitted, what has to be seen is as to whether the prosecution has been able to prove its case and whether the. Defence version put forward by the appellant might reasonably be correct. In the circumstances of the present case it will be appropriate to take up the defence version first. While the complainant and the injured witnesses say that Sardar Baig appellant and his companions (the four acquitted accused) were the aggressors and that Sardar Baig appellant had fired at them and killed Sharif Baig deceased, the defence has taken up an extraordinary position, namely, that the five injured P. Ws. And Hussain Baig complainant (i e. The complainant party) had a difference with Sharif Baig deceased over the question of inheritance of the property of Diwan Baig, the father of li2st. Rashidan Begum (who is widow of Sharif Baig deceased), that Sardar Baig appellant was actually on the side of Sharif Baig deceased; that they I e. Sardar Baig and Sharif Baig) fired at the injured witnesses (i,e, the complainant party) and the latter fired back in self-defence and when Sharif Baig deceased and it was Sardar Baig appellant who had actually fired at and killed the deceased and had also shot at them (1. e. At the injured witnesses). Not only is this version fantastic on the face of it, but it also does not bear scrutiny, because it is admitted that Afzal Baig etc., namely, the injured witnesses (who, according to the defence version, had shot Sharif Baig dead), had nothing to gain by murdering him because his wife Mst. Rashidan Begum (who is still alive), and the collaterals of her deceased father Diwan Baig would have inherited his (Di xan Baig's) property and Afzal Baig, etc., would not get anything. As such we are of the view that this story is absurd and cannot be believed.
It is, therefore, rejected as false.
10. We now proceed to consider whether the prosecution has been able to prove cases through the prosecution witnesses.
' As already mentioned the prosecution has sought to prove its case mainly through the eye- witnesses, all of whom, except Hussain Baig P. W. 14, were injured, together with the recovery of gun P. 2 and empty cartridges P. 6/1-7, which, according to the Ballistics Expert, match with each other.
Since most of the eye-witnesses were injured during the incident, it cannot be contended that they were not present at the time of the occurrence and it being a daytime incident, it cannot be said that they were not able to see the occurrence and if they are believed, their testimony would certainly be corroborated by the recovery of the gun and the empty cartridges coupled with the opinion of the Ballistics Expert.
' The trouble, however, is that the medical evidence seriously contradicts the ocular testimony of the five injured witnesses and Hussain Baig P. W. 14, the first informant on material points. A look at the injuries found on the body of the deceased during the post-mortem examination would reveal that each of the four injuries had had black margins, which goes to show that these shots were fired at the deceased from a close range. According to Modes Medical Jurisprudence the distance could not be more than four feet. The prosecution witnesses have not given the distance from which the shots were fired at the deceased but, according to the site plan Exh. P. J. Prepared by Ali Akbar Zaidi. Draftsman P. W. 7 Sardar Baig appellant had fired shots at the deceased from a place shown at point No, 5, while the deceased was standing at point No, 3, at that time. The deceased is said to have run from point No 3 to the shop of Nazir, which is shown at point No, 1 on the site plan.
According to the distances as shown in the site plan itself, the distance between points Nos. 5 and 3 is about 57 feet and that between points Nos. 3 and 1 is about 77 feet. We notice that the site plan is stated to have been prepared at the scale of 1-16 feet. If measured on this basis, the distance would be as follows :-
(i) From point No, 5 to point No, 3 -about 56 feet.
(ii) From point No, 3 to point No, 1-about 80 feet.
' Dr. Abdul Aziz Khan D. W. 3 has given the possible distance from which the shots had been fired by Sardar Baig appellant at the deceased as 12 to 15 feet. But, as mentioned above, according to the site plan this distance would be between 56 to 57 feet. But, as mentioned above, the wounds of inlet on the body of deceased were found to have blackened margins. There is thus an obvious contradiction between the medical and the ocular evidence. The State Counsel has not been able to give any explanation for this glaring discrepancy.
11. Besides this we have seen that, according to the eye-witnesses, after being hit by the shots Sharif Baig ran from point No, 3 to point No, 10 on the site plan and fell in front of the shop of Nazir.
As shown in paragraph No, 10 above, according to the site plan this distance would be between 77 to 80 feet. But Dr. Muhammad Akram P. W. I, who performed the post-mortem examination, opined that the time between the injuries and death was immediate. He elaborated during the cross- examination that the branch of superior venacava which feeds the heart and lungs was ruptured whereby the blood supply to these organs was discontinued 'instantaneously' and the death too was, therefore, instantaneous. The doctor stated further that it would be incorrect to suggest that after sustaining the injuries described above, the deceased could have been able to walk. This view has been supported by Dr. Abdul Aziz Khan D. W. 3 who is a well-known Surgeon of Lahore with a reputation for unimpeachable integrity. It is, therefore, evident that although Sherif Baig deceased must have died immediately on receiving injury No, 4, yet the prosecution witnesses have, for reasons best known to them, tried to show that he had run as many as about 77 feet, after receiving the said injury and fell in front of the shop of Nazir. It has been held in State v. Abdul Sattar
(1) and Bagh Ali v. State (2) that wherever there is a contradiction between the medical evidence and the ocular evidence on material points, the medical evidence should be preferred. We think that this principle applies with full force to this case. Although it is quite possible that it was Sardar Baig appellant who had fired the shots at the deceased and the injured P. Ws. Yet it is quite clear that the eye-witnesses have given a version which is different to the manner in A which the occurrence actually took place and they tried to give a twist to the real facts. Under these circumstances it cannot be said with certainty whether, if the true facts were revealed, the appellant would still be guilty of an offence. No doubt the Courts have been authorised to sift the grain from the chaff but in such cases as the present one where the eye-witnesses have been clearly belied by the medical evidence we feel it would be very dangerous to rely on their testimony for convicting the appellant.
' It may be mentioned that one of the witnesses, namely, Afzal Baig is a policeman. We feel that it is he who is responsible for having given a twist to the facts and influenced the other P. Ws., who are closely related to him, to give a different version on an effort to show that Sharif Baig deceased had not gone near Sardar Baig appellant, fearing that although that may be consistent with the 'blackening' of the fire-arm injuries, it may make out a case of self-defence for the appellant. As such he and the other witnesses insisted that the deceased was shot at when he was standing in front of the door of his (Afzal Baig's) house, at a distance of 56/57 feet.
12. Considering the above-mentioned facts we are constrained to hold that notwithstanding the fact that the presence of the eye-witnesses at the spot is established through their injuries, we cannot base the conviction on the version which they have chosen to give at the trial. The result is that the appeal is accepted, the impugned judgment is set aside and the appellant is acquitted.
He should be released forthwith if he is not wanted in any other' case.
13. This disposes of the appeal and the murder reference. {{FOOT NOTE}}
(1) 1973 SCM R 312 (2) PLD 1973 SC 321 {{FOOT NOTE}} revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.