1986 PLP 2533 (MLD)

6. P. W. 1 Mitho the complainant had corroborated the contents of the first information report. He gave the same statement at the trial. P.W.2 Wazir the other eye‑witness and inmate of the house has also corroborated the statement of P.W. Mitho. P.W. Muhammad who was stated to have attracted to the Wardat and saw the accused running away from the Wardat, has stated that accused Allah Warayo was armed with gun whereas accused Rahim Bux was armed with hatchets. Learned counsel for the appellants has submitted that the ocular testimony of the two eye‑witnesses is contradicted by the medical evidence and in view of such contradictions implicit reliance cannot be placed on the statements of the two eye‑witnesses who are also interested. Learned counsel has assailed the finding of the trial Court on the ground that the statement of the doctor about the distance from which the accused had fired cannot be accepted as the nature of injuries show that the fire‑arm used against deceased Bagh was from close range so also the injuries No.1 and 2 were result of a fire from close range and the injury No.1 was a result of discharge from the fire‑arm from a long distance. According to P.W. Mitho accused Allah Warayo was at a distance of 2‑3 paces from deceased Bagh. Deceased Punhoon was at a distance of about 8‑9 feet from deceased Bagh and according to doctor injury No.1 on the person of deceased Bagh was caused by gunfire from a distance of within four feet and the injuries on the person of deceased Punhoon were caused by the discharge of fire‑arm from a distance of 10‑12 feet. I first refer to the injuries on the person of deceased Bagh. The nature of injury show that deceased had received the injury on the back. Injury No.2 is the exit wound. Thus deceased Bagh had received the injury while his back was towards the assailant. This fact itself clearly shows that the ocular testimony of the eye‑witnesses is contradicted by this fact because according to the witnesses accused Allah Warayo challenged deceased Bagh that he will not be spared and then he ‑fired straightaway at him, who fell down on the cot. It is not the case of the prosecution that the deceased's back was towards the assailants when the accused had fired at him. Injury No.1 also shows presence of burning and charring. Now I take up the case of the other deceased. Injury No.1 does not show presence of any burning or charring. Injury No.2 shows burning and charring. Injury No.3 shows that the skin was lack and burnt. In this case injury No.4 was exit wound. Injuries No.2 and 3 have thus been caused from the close range and in such circumstances it is clear that two fires had been made at the deceased. Injuries 2 and 3 were the result of discharge from the fire‑arm with a close range and injury No.1 was a result of discharge from fire‑arm from some distance. Learned counsel has referred to Medical Jurisprudence and Toxicology by Modi, Thirteenth Edition page. 224 and for the sake of convenience the relevant portion is reproduced below: "Distance of the Fire‑arm.‑‑If a fire; arm is .discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder. The adjacent hair is signed, and the clothes covering the part are burnt from the flame of the gas. If the powder is smokeless there will be no blackening of the skin, but there may be a greyish or white deposit on the skin round the wound. No blackening or scorching is found, if the fire‑arm is discharged from a distance of more than four feet. Moreover, these signs may be absent even when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame, smoke and particle's of gunpowder will all follow the track of the bullet in the body." The author has further stated at page 225 that the effects produced by small short fired from a shot gun vary according to the distance of the weapon from the body, and chocking device. A charge of small shot, fired very close to, or within a few inches of, the body enters in one mass like a single bullet making a large irregular wound with scorched and contused edges, and is followed by the gases of the discharge which greatly lacerate and rupture the deeper tissues. Learned counsel has relied upon various authorities in support of his submissions. The following passage of the case reported in AIR 1956 S C 526 is relevant and is reproduced below:‑ "For instance, it is stated in Taylor's Principles and Practice of Medical Jurisprudence, Volume I, 10th Edition, at page 441, under the heading 'Burning of the Wound, It is impossible to state rules as to the precise distance from which it is possible to produce marks of burning, for this depends on the quantity and nature of the powder, the method of charging, and the nature of the weapon. It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shot gun, or at more than half a yard with a revolver." In Ajun Shah v. The State P L D 1967 S C 185 it has been observed that there was no burning either on the cloth or in the entrance of the wounds. On the other hand, charring of the wounds show that the muzzle of the gun was at some distance when the shot had been fired. In P L D 1959 Kar. 137 the following observations are material:‑ "This shows that the gun was fired at the deceased not from a distance of 100 or 120 feet but from a distance of not more than four yards. These injuries could easily ' be caused even from a distance of four yards. Mr. Junejo, the learned counsel for the State, has invited our attention to the observation of Dr. Sydney Smith in Volume I of Taylor's Principles and Practice of Medical Jurisprudence at page

441. According to this observation the shot begins to disperse in any ordinary cylindrical barrel at about three yards, at which distance the bulk of the shot enters in one mass and leaves a hole with a few isolated shots around it. The dispersion gradually increases, and at about five yards an open pattern about ten inches in diameter is found. At ten yards the diameter of spread is about twenty inches; at twenty yards about thirty inches and so on. With fully choked barrels the dispersion is about half the above. The learned commentator 3t has further stated; It is unusual however, to get marks of burning beyond a yard or a yard and a half with a shot gun, or at more than a yard with a revolver." Modi also in his book on Medical Jurisprudence and Toxicology at page 218 has observed:‑ "If a fire‑arm is discharged. very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched. and blackened by smoke and tattooed with unburnt grains of gunpowder." A little further he observed:‑ "No blackening or charring is found, if the fire‑arm is discharged from a distance of more than, four feet." . In Mir Muhammad and others v. 'the State 1972 P Cr. L J 1108 it has been observed that the nature of the injury coupled with the evidence of the Medical Officer that the injury must have been caused from a distance of few, inches, falsified the eye‑witnesses and made it unsafe to rely on their testimony. In this respect the following observation is also material:‑ "In the absence of the gun, the range of the shot should be estimated according to the formula given by Major Sir Gerald Burrard (The identification of Fire‑Arms and Forensic Ballistics‑‑?1956 Ed‑p. 73) according to whom, if the diameter of the wound is an inch, or less, then the distance of the shot would be 18 inches or under and that at 3 feet, the hole is nearly 1?" in diameter, and, at 6 feet, the hole would be nearly twice as big in diameter as that from a full choke. The measurement of the wound of entry according to this estimate would show that the fatal shot could not have been fired from the roof. Further, as a shot gun was used then according to Burrard, the pellets of a charge of shot do not fly through the air as a single cohesive projectile, but being to disperse outwards very soon after their exit from the muzzle of the gun. This dispersion increases with the range and consequently the greater the dispersion of the shot marks on any target and greater must have been the range from which the shot was fired against the target. In Sweet and Maxwell's publication, 'Practical Police Surgeon' (1969) Ed., page 121), it is stated that if the missile is a charge of shot then it forms at first a single mass and then breaks up into individual pellet, and therefore, at close or contact range, a single wound results, whereas at longer range individual pellet holes will show in increasing number and a widening pattern as the range lengthens. Similarly Lyon (Medical Jurisprudence for India 1953 Ed., page 276) states that if the muzzle of the gun is held to the surface of the body, or within a few inches of it, the whole charge, of the shot enters as one mass followed by Wads. Taylor (Principles and Practice of Medical Jurisprudence 11th Ed., page 384) states that up to about a yard the whole of the charge enters in a mass, producing a round hole about the size of the bore of the weapon, with ragged edges and, for the first few inches surrounded by a zone of blackening and burning and that the diameter of dispersion in inches will be found to be about one and a half times the distance in yards." In P L D 1968 Lah. 437 the opinion of the Medical Officer was discarded as the same was not in accord with opinion expressed in a treatise on fire‑arms and ballistics. In 1978 P.Cr.L.J 690, though the presence of the eye‑witnesses at the spot was established but conviction was not based on their testimony and the medical evidence was preferred over the ocular testimony. In the present case the ocular testimony is belied by the medical evidence and the medical evidence cannot be accepted in view of the opinion given by Modi and other experts in their books. The ocular testimony has to be discarded as it is the consistent statements of the two witnesses that both the deceased had received one shot each but the injuries on the person of deceased Punhoon show that he received two injuries. The inquest report shows that there was one white Banyan and one Ajrak on the person of deceased Bagh. Deceased Punhoon was having lion cloth on his body at the time of inspection by the I.O, Bunyan of the deceased does not show any corresponding mark. Even otherwise these articles were not sent to the Chemical Examiner. If the prosecution story is accepted that the deceased Bagh had received injuries as stated by them then there must have been some marks on the Banyan of the deceased. This fact also casts doubt on the prosecution, version as stated by the eye‑witnesses. In 'these circumstances the conviction recorded against the appellants cannot be sustained. The appeal is accepted and the conviction and sentences recorded against the appellants are set aside. The appellants are on bail. Their bail bonds are discharged. The appeal was accepted by the short order, dated 6‑8‑1986. The above are the reasons for the same. S. G. D.?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.