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Criminal Appeal No. 21 of 1966/BWP, decided on 27th March 1968.

S. 302‑Murder‑Recovery of crime weapon (gun) from accused doubtful‑Evidence of highly interested eye‑witnesses not inspiring confidence‑Contradiction in ocular evidence and dying declaration, of deceased None of prosecution witnesses seeing accused firing at deceased- Accused, held, in circumstances, cannot be held guilty of murder.

S. 439‑Suo motu Revision‑‑‑Conviction under S's. 148,307 [149 &436] 149, P. P. C. Principal accused acquitted on appeal‑, ‑Co‑accused not filing any appeal‑High Court haring examined record also acquitted co‑accused in exercising posers under S, 439.

Fakhur‑ud‑Din for the State.

Gauhra appellants was convicted by the learned Sessions Judge, Bahawalpur Camp, Bahawalnagar, under section 302, P. P. C. and sentenced to transportation for life. Ibis companions were convicted under section 307/149, P. P. C. and sentenced to three years' R. I. each. All these accused were, however, convicted under section 436/149, P. P. C. and sentenced to one year R. I. each. They were also convicted under section 148, P. P. C. and sentenced to three years' R. I. each on the 14th of January 1964. On the same day, the learned Sessions Judge convicted Gauhra under section 20 of the Arms Act and sentenced him to ore year R. I.

2. Only Gauhra has challenged his convictions by two separate appeals filed through, jail which will be disposed of by the same order.

3. Briefly, the facts of the case arc disclosed by Muhammad Ali (P. W. 13) whose sister was married to the deceased Shan Muhammad. The complainant party were refugees from Ferozepur district and they had settled in village Nathu Dhaka situated within police station Dunga Bunga, tehsil and district Bahawalnagar, where land was allotted to them. The accused were also refugee and Maitla by cast. They were also allotted land in the Chak. It is alleged that the accused‑party started committing crimes in the area and the residents of the Chak decided to ask them to quit the village, otherwise they will be involved in criminal cases. On account of this threat, Jalal and Ramman left the village and settled in Kat Anok Singh, Police Station Sadiqpur. It is further alleged that the accused‑party were annoyed of this externment and were under the impression that they were made to leave the village on account of Sham Muhammad, the deceased in this case. They were proceeded against under section 107, Cr. P. C. On the day of occurrence, at about 12 noon, the deceased along with his servants Kalu and Babir P. Ws. was present at the belna when the appellant and his companions armed with guns, rifles and pistols came and fired with their respective weapons. They set at fire the chhappar of the deceased near the belna working under the chhapri for preparing gur. The appellant is alleged to have fired as a result of which the deceased received a wound on his thigh. Originally, a case was registered under sections 148, 307/ 149 and 436/149, P, P. C. at Police Station Dunga Bunga at the instance of Muhammad Ali (P. W. 13) on 27th of February 1962 at 1‑30 p.m. but after the death of Shan Muhammad, the offence was converted into section 302, P. P. C.

4. Dr. Habib‑ur‑Rahman (P. W. 1), Medical Officer, Haroonabad, conducted the post‑mortem examination on the dead body of Shan Muhammad, on 28th of February 1962, at 7 a.m. and found the following injuries on his person:

(1) Eight wounds of entry 1/4' round on the back and lower half of the left thigh.

(2) Eight wounds of exit 1/3" round on the front and lower half of the left thigh. The femur of left thigh was fractured at the site of gunshot wound.

On opening the body, he found the blood vessels of left thigh were ruptured and the rest of the viscera was healthy and normal. The injury was grievous and dangerous. Death in his opinion was due to shock and haemorrhage as a result of multiple gunshot wounds which were sufficient to cause death in the ordinary course of nature. Probable time between death and injury was less than 12 hours and between death and post‑mortem also less than 12 hours. Exh. P. H. is the carbon copy of his post‑mortem report. Previously, the same doctor examined the deceased in the hospital when he was brought by F. C. Ghulam Rasul. He wrote ruqqa Exh. P. L. to the police to make arrangements for recording his dying declaration. Jan Muhammad Magistrate IInd Class visited the hospital and recorded the dying declaration Exh. P. J. in his presence. He gave certificate Exh. P. J./A that the deceased was in a fit condition to make statement.

5. Jan Muhammad (P. W. 8) appeared at the trial and stated that he correctly recorded the statement of the, deceased which was read over to him and he accepted it correct and thumb- marked the same. After recording the statement, it was banded over to the police vide Exh. P. J/B.]

6. The prosecution has produced Muhammad Ali (P. W. 13) whose sister was married to the deceased. Sardar Ali (P. W. 14) son of the deceased, Kalu (P. W. 15), Baqir (P. W. 16) and Bagh Ali (P. W. 17) who was a servant of the brother of the deceased. Kalu and Baqir are brothers. Kalu is a Chowkidar and both of them were working as servants of Sardar Ali lambardar (P. W. 14).

7. The appellant was arrested on 4th of April 1962 by Munawar Zaman, Head Constable (P. W. 3) and gun Exh, P. 9 was recovered at the instance of the appellant from the house of Ghani Bhatti in village Kat Anok Singh on 5th of April 1962. This recovery was witnessed by Akhtar Ali (P. W. 18). Saeed Ahmad, A. S. I. (P. W. 21) who partly investigated the case, took into his possession two live cartridges from near the water course where the deceased was injured. They were sealed into a parcel and memo. Exh. P. D. was prepared. Two 12‑bore empties were also taken into possession from the same place vide memo, Exh. P. C. Three .303 empties were found lying near the belna. They were taken into possession vide memo. Exh. P. B. Gun Exh. P. 9, the empties mentioned above and one rifle Exh. 1'. 10 were sent to the Forensic Science Laboratory.

8. Mr. Tajammal Hussain, Firearms Expert appeared as P. W. 19 at the trial and deposed that an 11th of July 1962, he along with Shahjehan Khan Expert had jointly examined the crime empties for ascertaining if they had been fired through gun Exh P. 9 or rifle Exh. P. 10. One test shell was prepared by firing through gun Exh. P. 9 which is Exh. P. 11. This test shell was compared with the crime shells Exh. P. 7 and Exh. P. 8 which were marked as C. 4 and C. 5 in the Laboratory. A composite photograph was prepared of the crime empty marked C. 5 and the test shell marked T. 1. As a result of the microscopic comparison, he and his companion came to the conclusion that the crime empties marked C. 4 and C. 5 had been fired through gun Exh. P. 9. He, however, did not mention the reasons for coming to that conclusion in his reports Exh. P. S. but disclosed them at the trial: Regarding rites, Exh. P. 10 the opined no definite opinion could be given.

9. Raja Nawazish Ali, S. I. (P.W. 20) recorded the F., I. R. Exh. P. A. at the dictation of Muhammad Ali P. W. and he along with Saeed Ahmad, A. S. I., went to village Nathu Dhaka and found Shan Muhammad deceased lying injured. He prepared his injury statement Exh P. F. and sent him to the hospital. He also wrote ruqqa Exh. P. F. I to the doctor requesting him to inform Haroonabad police for arranging for recording of the dying declaration of the injured man, if his condition so required. He left the spot thereafter in search of the culprits leaving A. S. I. Saeed Ahmad to conduct the necessary investigation in the case.

10. In this statement, Muhammad Ali (P. W. 13) stated that Shan Muhammad had his belna at a distance of four or five killas from the village abadi. He himself was residing at a distance of ten killas from the belna. At about mid‑day, he heard gun reports and rushed towards that side. In the way Yaqub, Bagh Ali, Muhammad Ali, Karim Bakhsh, Jamil and Sardar Ali joined him and all of them reached near belna. When they were at a distance of one killa from the belna, they saw Ramman, accused standing on the roof of the kotha and had a pistol with him. Gauhra appellant, Sadiq accused and Amin absconder were standing on the northern side of the chhappar. Gauhra and Sadiq were armed with 12 bore guns while Amin was armed with a rifle. Khan Bahadur and Palhu were standing on the southern side of the chappar. Khan Bahadur was armed with a rifle and Palhu with a pistol. Sadiq and Khan Bahadur had muted their faces. Shan Muhammad deceased and his employees Kalu and Baqir P. Ws. were present under the chhappar and were preparing gur. Within their sigh:, Ramman, Gauhra and Sadiq accused fired some shots. Sardar Ali P. W. had a 12‑bore gun with him and he fired shots in the air. Gauhra shouted to his companions to set at fire the chappar and Sadiq accused and Amin absconder complied with his orders. Shan Muhammad, in order to save his life, ran towards the sugar‑cane crop and Gauhra appellant followed him. He entered the sugar‑cane field. Thereafter, they heard two gun reports, as a result of which Shan Muhammad was injured. The appellant and his compa nions took to their heels and disappeared from the spot. Despite the fact that he has mentioned the names of several persons who accompanied them, but none of them has been produced to support the prosecution case. Only relations and servants of the family have been produced at the trial and other independent persons were withheld. None of the P. Ws. saw Gauhra appellant firing The occurrence took place during broad day light in the close vicinity of the village and it is unsafe to rely on the testimony of the interested witnesses. Even the learner Sessions Judge himself made this observation and yet ha convicted the appellant on their testimony. He has disbelieved the recovery of gun from the appellant and has rightly done so specially when there is a contradiction between the statements of Akbar Ali (P. W. 18) and Manawar Zaman, Head Constable (P. W. 3) about the presence of Ghani Bhatti from whose hous4 the gun was recovered. Akhtar Ali, who belonged to another village Jandwala, stated that Ghani was present at the time of the recovery and the police had taken him along while the Head Constable stated that he was not at his house. The recovery of the gun being doubtful, the testimony of the Firearms Expert becomes fruitless.

11. We have gone through the entire evidence with the hell of the learned counsel appearing on behalf of the State. The evidence of the eye‑witnesses does not inspire confidence and being highly interested cannot be relied upon.

12. The dying declaration in this case disclosed a different story. The deceased stated that all the accused fired at him and he was hit by the gun of the appellant. He did not disclose the story that he ran away from the belna towards the sugar‑cane field and was followed by the appellant and then near the sugar‑cane field he was fired at by the appellant, as stated by the other eye‑witnesses. This contradiction in the ocular evidence and the dying declaration clearly shows that the deceased wanted to implicate all the assailants in the crime and none of the prosecution witnesses have seen the appellant or any one firing at him. It is, therefore, difficult for us to hold any one of them guilty of the crime. We would, therefore, accept this appeal, set aside the conviction and sentence of the appellant under section 302, P. P. C. and acquit him.

13. It is in evidence that the gur was being prepared under the chhappar, which may have caught fire. As we have disbelieved the eye‑witnesses, we also do not accept the allegation of burning of the chhappar by the appellant's companions. The conviction under section 436/149, P. P. C. is also set aside. Since the prosecution has failed to prove the case, the conviction of the appellant under section 148, P. P. C. is also set aside.

14. The conviction of the appellant under the Arms Act is based on the testimony of Akhtar All and Munawar Zaman, Head Constable. We are astonished although the learned Sessions Judge himself has not relied on the recovery, yet he has convicted the appellant under the Arms Act. The material discrepancy in their statements has already been discussed above. We would, therefore, also accept this appeal, set aside the conviction and acquit the appellant of this charge as wall,

15. Unfortunately, the other accused Ramman, Palhu, Khan Bahadur and Sadiq who were convicted under sections 436/149, 307/149 and 148, P. P. C. did not file any appeal B against their conviction. Exercising our powers under section 43 Cr. P. C. since ‑‑we have examined the record, we also set aside their conviction and sentences on these counts and acquit them.

Appeal accepted.

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