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Criminal Appeal No. 221 of 1977, decided on 28th April, 1980.

Appeal against the judgment and order of the Peshawar High Court, Peshawar, dated 23-7-1977 passed in Criminal Case No. 7 of 1.976).

Peal Code (XLV of 1860-.

---- S. 302/34-[Murder-case]-Appreciation of evidence-Deceased receiving 12 bullet injuries but allegedly covering a distance of 10-15 yards and hoisting himself on tonga unassisted by any one, going unaided to Doctor's clinic when reaching hospital-Deceased in view of type of injuries received by him not likely to have been able to undertake such physical exertions on his own-Deceased in view of injuries received sure to have been in a shock if not altogether unconscious-Doctor stating: "patient was not drowsy but he used to close his eyes after some time" meaning thereby patient being not in full control of his faculties- Impossible to believe patient having got recorded details of occurrence in so precise manner as not to omit any necessary and relevant detail, such as, type of arm carried by each one of accused appellant, names of eye-witnesses and of others owing to whom unfortunate episode in first place triggered-Evidence regarding recording of dying declaration as given by doctors arid other witnesses conflicting in material aspects-Usual certificate obtained by Police regarding patient having been in senses not obtained before recording of dying declaration but appended subsequently Evidence of Ballistic Expert revealing deceased having been shot from one or more than one weapon of same calibre and such weapon being a '32 bore pistol but one of accused. alleged to have used his rifle Type of injuries received by deceased revealing such work having been of only one man-No evidence on record, however, showing as to which one of three accused caused such injuries to deceased-No option, in circumstances, held, left but to hold prosecution having failed to bring home its case against any one of appellants-Evidence of eyewitness full of contradictions, omissions as well as improvements-Such witness also a personal servant of deceased-Accused youngmen and inexperienced making themselves scarce on finding themselves named for murder-Abscondence in absence of any other evidence against accused, however, of no avail to prosecution-Appeal allowed.[Abscondence].

A. K. Brohi, Senior Advocate add. Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Sahibzada Akhtar Munir, Assistant Advocate-General, N.-W. F. P. (Peshawar) instructed by M. Qasim Imam, Advocate-on-Record for the State. .

Date of hearing : 28th April, 1980.

G. SAMAR SHAH, J.--Appellants Muhammad Umar Khan, Muhammad Ahmed and Muhammad Tahir Khan are real brothers, whereas Farman Ali is said to be their friend. The four of them were tried by the Additional Sessions Judge Bannu, under. section 302/34, P. P. C. for the murder of Rashid Khan who found them guilty under section 304, Part 1/34, P. P. C. and sentenced each one of them to ten years' R. I., as well as a fine of Rs. 1,000 each and in default thereof is further R. I. for one year.

The State, as well as the appellants both filed appeals in the High Court, as the State felt aggrieved of that part of the judgment of the trial Court by which the appellants were acquitted of the charge under section 302/34, P. P. C. whereas the appellants felt dissatisfied about their conviction and sentences. By its judgment, dated 14-7-197')1, the High Court dismissed the appeal of the appellants and while accepting the appeal filed by the State altered the conviction of the appellants to one under section 302/34, 1'. P. C. . and sentenced each one of them to imprisonment for life, as well as a fine of Rs. 2,000 each or in default thereof further six months' R. L, with direction that in the event of the fine being recovered the same shall be paid to the heirs of the deceased as compensation under section 544/A of the Cr. P. C.

In view of this conflict of opinion between the trial Judge on. the one hand and the High Court on the other, leave was granted to the appellants by this Court, vide, order, dated 15-11-1977.

Now the occurrence in this case had taken place at 11-30 a.m. on 21-6-1975 in Mohallah Abkari, Bannu City, which is said to be the busiest part of the Town. The report of the occurrence was made by Rashid Khan (who. was then in injured condition) on the operation table of the District Headquarters Hospital, Bannu, at 11-55 a.m., which rendered into English should read thus :

"Rashid Khan son of Nadar Khan,. Caste Pakhtoon, resident of Mohallah Abkari, Bannu City, in the presence of Doctor Hasham, Draz Khan and Mohabbat Khan reported that at 11-30 a.m. this morning the four appellants herein, out of whom appellant Umar Khan was armed with five shot rifle and the other three with pistols, fired at him in the presence of P. W. Abdullah Khan, Gulshad (not examined and Zarif Khan (not examined) in consequence of which firing he was injured in the chest as well as left band. The reason for the enmity, was that the appellants had given beating to one Saddiq son of Oayyum and consequently he had complained to them in that behalf but they felt annoyed which led to an altercation and then all of them fired at him and injured him."

This statement of Rashid Khan, which formed the basis of the regular F. I. R. recorded at the Bannu Police Station at 11-55 a.m. on the same day, bears the certificate of Doctor Mohabbat Khan to the effect "that the injured person Mr. Rashid Khan son of Nadar Khan is in proper senses and capable to depose to his death declaration". The admitted position is that Rashid Khan died on the operation table at about 3-25 p.m. on the day of occurrence and after his death his said statement was taken as his dying declaration and used as such by the trial Judge, as well as the High Court.

1n the trial Court, the prosecution relied on the ocular evidence furnished by Abdullah Khan (P. W. 7) and Ataullah Khan (P. W. 18); .on the dying declaration of the deceased; on the motive; on the abscondence of the three appellants brothers, as well as on the recovery of four .32 bore empties, as well as a pistol of that bore which was recovered by the Investigating Officer from a heap of rubbish just' next to the place of occurrence. The learned Trial Judge disbelieved the evidence of Ataullah (P. W. 18). But believing the rest of the evidence tendered by the prosecution found them guilty and instead of convicting them under section 302/34, P. P. C. convicted them under section 304 Part 1/34, P. P. C. holding. "The accused were armed, as it is natural in this part of the country that youngmen feel proud to carry arms on their persons, so they resorted to the use of arms and fired upon the deceased. 1 am definite it was not a premeditated, pre-arranged and cold blooded murder, no doubt the accused party acted in a rash manner, but it was not a pre-planned affair. The incident had taken place all of a sudden. The accused have acted' in a manner by committing culpable homicide not amounting to murder. Thus I find them guilty under section 304, Part 1/34, P. P. C." In the High Court, this reasoning of the learned trial Judge was looked at with disfavour. The view taken by the High Court was that the only exception which would conceivably apply to the case of the appellants would be Exception 4. to section 300, P. P. C. But since the appellants had taken undue advantage, as well as acted in a cruel and unusual manner by firing at the unarmed deceased, they were clearly guilty of culpable homicide amounting to murder and so each. one of them ought to have been convicted under section 302/34, P. P. C.

Mr. A. K.. Brohi, the learned senior counsel for the appellants criticized the judgment of the High Court principally on the ground that by accepting the evidence of the prosecution, the High Court has casually dealt with the same without making any effort to ensure if the said evidence was natural, probable and was capable of carrying conviction. In this behalf he first invited our attention to that part of the prosecution case in which Rashid Khan, then seriously injured, is said to have covered a distance of about 10-15 yards and then hoisted himself in the rear seat of a waiting tonga without the aid . .or assistance of any one; that when he reached the casualty ward of the local, Hospital, he again went into the clinic of Doctor Mohabbat

Khan (P. W. 2) completely unaided; that when Doctor Mohabbat Khan examined his wounds he found them serious and consequently referred hire

to the operation theater to which theater again he walked over completely unaided. The grievance of Mr. Brohi is that the type of injuries suffered by Rashid Khan would make it impossible-for him to have undertaken all the said physical exertions on his own, and we feel inclined to agree with him. Doctor Muhammad Kamal (P. W. 1) of the District Headquarters Hospital, Bannu, had conducted autopsy on the dead body of Rashid Khan at 4-45 p.m. on 21-6-1975 and found the following injuries on his person .

"External Injuries:

(1) An inlet wound ' x in size 6 above the middle of right poplitel fossa.

(,2) Corresponding vutlet wound 1/3" X 2/3' in size 5' inner to wound No. 1 on the right leg.

(3) An inlet wound 1/3' x 1/3' in size on the left leg, on its medial side 6 below left knee-joint.

(4) Corresponding outlet wound on the lateral side of left leg 6' below left knee joint.

(5) An inlet wound 1/3" x 1/3' in size at the posterior medial side of left knee joint.

(6) A bullet lying under the skin at the posterior lateral side of left knee joint was recovered. This corresponds to inlet wound No. 5. Wounds Nos. 1, 2. 3, 4, and 5 bear corresponding rent marks on shalwar.

(7) An inlet wound 1/3" x 1/3' in size at the back portion of left elbow joint 1 J' leftward from upper end of left ulna.

(8) A corresponding outlet wound to No. 7 1 x I' in size at the medial end of left cubital fossa.

(9) An inlet wound 1/3" x 1/3' into abdomen deep in size 2' below lower end of sternal bone.

(10) An inlet wound 1/ 3" x 1 /3' abdomen deep in size. 3' below lower end of sternal bone.

(I1) An inlet wound 1/3" x 1/3' in size 2 " backward to right superior iliac spine. Wounds Nos. 7, 8, 9, 10 and 11 bear corresponding rent mark on shirt.

(12) A bullet lying under the skin 4' rightward from third lumber vertebra which was recovered.

Internal examination:

(1) Chest: All the organs of chest were healthy and intact.

(2) Abdomen.-Abdomen wall, peritonium were wounded. One feet of small intestine (ileum) was resejected, and to end an estomosis was present. Second part of duodenum present. Half feet of transverse colon was resejected. Stomach was healthy and intact and empty."

Even the dying declaration of deceased Rashid Khan seems to be doubtful. In view of the said injuries suffered by him; he must indeed have been in a shock if not altogether unconscious. In fact in the cross-examination of Doctor Hasham Daraz Khan, it is said that "the patient was not drowsy but he used to close his eyes after sometime" meaning thereby that he was not in full control of his faculties. In this view, it is impossible to believe that 'he could have got recorded the details of then occurrence in so precise a manner as not even omit any of the necessary and relevant details-such as the type of arms which each one of the appellants was carrying; the names of the eye-witnesses; and the name of Siddiq son of Qayyum owing to whom the whole unfortunate episode had in the first place been triggered.

The additional reason for which we have doubted the genuineness of the dying declaration is that two responsible doctors, namely, Doctor Mohabbat Khan and Doctor Hasham Draz Khan, as well as the solitary eye-witness Abdullah Khan are in disagreement with each other in respect of certain crucial and fundamental aspects of the case of the prosecution. Now all the said three witnesses are unanimous that the dying declaration o the deceased had been recorded on the operation table; that they, as well a the deceased Rashid Khan belong to Bannu and consequently spoke to each other in Banochi Pashto; and that the dying declaration in question was recorded by S. H. O. Khalilur Rehman Khan (P. W. 20) when the said two doctors were busy attending to the deceased. The evidence of Doctor Hasham Daraz Khan. (P. W. 3), however, is that Khablur Rahman Khan S. H. O. had recorded the dying declaration on the dictation given to him by Doctor Mohabbat Khan. But in his own evidence. Doctor Mohabba Khan has repudiated the said suggestion saying that "I did not give the dictation to the Investigating Officer of the words uttered by Rashid Khan injured as I was busy giving emergency treatment at that time". Strangely, however, Khalilur Rehman, who is also a Banchi Pashto speaking person has supported the version given by .Doctor Hasham Daraz Khan to the effect. "The statement was given by Rashid in Pashto. Mohabbat Khan doctor used to translate- it in Urdu for me". Now'this being the state of evidence of four responsible persons, to which on attention was paid in the High Court, it cannot be said that the dying declaration of deceased Rashid Khan was of the type whose genuineness should have been readily accepted. Furthermore, the usual certificate which an Investigating Officer invariably obtains from a doctor before recording ,the dying declaration of an injure person, was not obtained in this case by S. H. O. Khalilur Rehman, admittedly the said certificate was appended to the dying declaration of the deceased subsequently and signed by the said two doctors.

In his dying declaration, Rashid Khan has involved the three brothers as well as their friend, Farman Ali. But the medical evidence and the evidence of the Ballistic Expert do seem to cast doubt on his veracity. The evidence of Doctor Muhammad Kamal, who had conducted autopsy on the dead body of Rashid Khan' is that the size of inlet of all the wounds suffered by him was the same meaning thereby that he had been shot from one or mote than one weapon of the same calibre. it is in she evidence of the Ballistic Expert, however, that the- four empties sent to him for examination' were found to have been fired through .32 bore pistol which was also sent to: him . by the: Investigation. Officer. It would therefore follow that Rashid Khan had been shot through a pistol and certainly not through a rifle with which Farman Ali is said to have been armed. It is true that according to the prosecution each one of the three appellant brothers was armed with a .32 bore pistol: But the type of injuries suffered by Rashid Khan rather suggest that it was the work of one man. It is common knowledge that .32 bore pistol is an automatic weapon carrying in its charger seven bullets. The fact that the deceased was found to have suffered seven inlet wounds, three of them in his left Knee joint, one on his left elbow, two in his abdomen and one in backward direction to his right supericr iliac spine, the inlet -size of all of which is said to be the same, would go a long way to show that this could as well be the work of a single person and not of the three appellants. There. is no evidence on the record to show, however, as to which one of the three had caused him the said injuries, therefore, no option is left but to hold that the prosecution has failed to bring home its case against any one of the appellants.

We have also not been impressed with the eye-witness account of Abdullah Khan. Mr. Brohi, the learned counsel for the appellants taken us through his evidence and the same was found by us to be full of contradictions, omissions as well as improvements, the details of which however, need not be mentioned. Besides he was the personal servant of Rashid Khan deceased, therefore, true to the adage .of more loyal than the king he realizing the infirmity of the motive given by the deceased in his dying declaration improved upon the same by deposing in the trial Court that while accompanying the deceased to the Hospital in the tonga, the latter told him that the actual reason for which the appellants had fired upon him was because a few days ago he had admonished them as they were teasing the young girls of the locality.

There remains against the three brothers appellants the evidence of abscondence. But in the absence of any other evidence against them, abscondence by itself, as held in a series of judgments by this Court would be of no avail to the prosecution. When examined in the Court of the H Sessions Judge, appellant Umar Khan was 26 years old, Muhammad Ahmed 23 years old, and Muhammad Tahir Khan 20-21 years old. It is, therefore, obvious that being young and inexperienced they may as well have made themselves scarce no sooner they found that they were named for the murder of Rashid Khan.

By going through the judgment of the High Court, as well as the evidence on record we are satisfied that the prosecution has failed to prove its case against the appellants beyond reasonable doubt; therefore, this appeal is allowed; the conviction and sentences of the appellants are set aside and it is directed that the appellants shall be released forthwith unless required in connection with some other case.

S. A. H. Appeal allowed.

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