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Criminal Appeal No. 418 of 1963, decided on 21st August 1964.
S. 32‑Dying declaration, as deposed to by witnesses, discrepant and bearing no signature of deceased‑Not relied upon.
S. 154‑F. I. R. recorded after commencement of investigation‑Inadmissible.
Statement recorded 4 days after incident‑Ruled out of consideration.
S. 302‑Accused found armed with pistol but no evidence as to who fired at deceased and under what circumstances‑Accused given benefit of doubt and acquitted of charge under S. 302.
Azizullah K. Sheikh for Appellant.
S. Murtaza Hussain Additional Advocate‑General for the State.
Date of hearing : 13th August 1964.
This appeal is by Budho, aged 30 who has been sentenced to death under section 302, P. P. C. for having committed the murder of Pir Bakhsh and to five years rigorous imprisonment under section 307, P. P. C. for attempting the life of Mst. Aishah and to two years' rigorous imprisonment under section 457, P. P. C. for committing house‑breaking by night by entering into the house of Mst. Aishah P. W. on 27th March 1962 at 1‑30 a.m. in village Naukot. His case is also before us for confirmation of the death sentence under section 374 of the Code of Criminal Procedure. The appeal and the reference will be disposed of by this judgment.
2. Musammat Aishah (P. W. 3) was a teacher in the Girls High School at Naukot. She had illicit intimacy with Pir Bakhsh deceased. Love letters Exh. 18/1‑100, proved by Mst. Bushran (P. W. 14) to be in the handwriting of Mst. Aishah, were recovered from the house of the deceased. Some time before the occurrence the deceased told Haji Muhammad Rahim (P. W. 2) that he was in love with Mst. Aishah and complained that the appellant Bhudho was opposing him and threatening to kill him, and that he should ask the appellant not to interfere as it was none of his business. About a month later, he again complained to him about the same matter. On the .12th of February, 1962, Haji Muhammad Rahim P.W. was going to Karachi, when the appellant met him at Hyderabad Railway Station. He asked the appellant why he was trying to interfere in the love affair between Pir Bakhsh and Mst. Atshah. He replied that he would not leave alone Pir Bakhsh, and would treat him as his enemy unless he called her his sister. He tried to persuade the appellant not to intermeddle in their affair, but he refused to agree.
3. Musammat Aishah P. W. resided in a house behind Jamia Masjid. The house of the appellant faced her house in the same lane. Adjoining her house to its east was a vacant house belonging to the Jamia Masjid. The house of Pir Bakhsh deceased, who was a stamp vendor, was near the Girls High School, Naukot.
4. On the night between the 26th and 27th of March, 1962, Mst. Aishah lay on her bed half asleep and half awake, when, at about midnight, Budho appellant scaled over the wall to the eastern side of her house, and picked up a lantern, which was lit, from her house. By scaling over the wall, the appellant went over the adjoining house which was vacant at that time. Some time before, Budho appellant used to live in this house. Mst. Aishah P. W. got up to see what the matter was. She also woke up her brother Malhar (P. W. 10). She climbed her window and looked over the wall over which the appellant had crossed over, and saw him and Pir Bakhsh deceased standing in the courtyard of the adjoining house. Budho appellant put the lantern on the ground and came towards Mst. Aishah to catch her. At that time she did not notice anything in his hand. As he came to catch her, she climbed down from the window into her own house and told her brother that there were thieves in the adjoining house. They raised cries of "thief, thief". At that time, they heard the report of a shot in the adjoining house and Budho appellant climbed over the same wall and stood over it, He told them to keep quiet. At that time he had a revolver in his hand. He warned Mst. Aishah to keep quiet and when she said that she would not, he fired two shots with his revolver at her. Both the shots hit her and she fell down and became unconscious.
5. The house of Muhammad Ashraf (P. W. 6) is at a distance of about 67 feet from the house of Mst. Aishah. At about 1‑30 a.m. he heard cries of "thief, thief" when sitting in his house, and came out. Hanif P. W., who was a Chowkidar and was keeping a watch at night, also went running towards the house of Mst. Aishah P. W. Muhammad Ashraf P. W. followed him. For going to the house of Mst. Aishah they went round the houses and then into the lane running in front of her house. When they reached the entrance of the lane, they heard the noise of footsteps of persons who were coming running towards them. Muhammad Ashraf P. W. and Hanif stopped there, as they thought that thieves were coming running towards them. They then went into the street and found the door of the house of Mst. Aishah open and people entering it through the door. They also went in and found M. P. C. Sarangram (P. W. 5) present there. Zahur Khan (P. W. 8) had climbed over the wall. Muhammad Ashraf P. W. found Mst. Aishah standing beside a wall raising a hue and cry. Muhammad Ashraf and others looked into the adjoining house and they saw one person standing in the courtyard of that house. Muhammad Ashraf and Muhammad Akram (P. W. 7) then jumped over the wall and went into that house. They identified that person as Pir Bakhsh. On the inquiry of Muhammad Ashraf, he told them that he had received a bullet wound, and that Budho had finished him. In the meanwhile, other persons broke open the outer door of the house and entered. Muhammad Ashraf and Mohammad Akram P. Ws. took Pir Bakhsh into the street, where the deceased fell down. Muhammad Ashraf then left for his house to put on some clothes, as he was feeling cold. When he came back to the scene of the occurrence, he found Zarin Khan, S. H. O. (P. W. 13), and Imam Bakhsh, Head Constable (P. W. 4), present there. In his presence, the S. H. O. made inquiries from the deceased, but whatever he muttered could not be understood. The S. H. O. then went to the house of Mst. Aishah and recorded her statement. Muhammad Akram (P. W. 7) had come to Naukot for boring a pipe for someone and was residing in a shop near the Jamia Masjid. He also went to the door of the house of Mst. Aishah and saw Zahur Khan P. W. sitting on a wall inside the house and Muhammad Ashraf on another wall. Muhammad Ashraf and he went into the adjoining house and Pir Bakhsh deceased told them that Budho appellant had fired a shot at him. Zahur Khan P. W. was sleeping in his house when, at about midnight or 1 a.m. he heard cries of "thief, thief", and went to the scene. When he reached the lane in front of the house of Mst. Aishah, he found Pir Bakhsh lying in the lane breathing his last. A policeman and head constable were also there. Then an S. H. O. came there. The deceased died immediately without making any dying declaration in his presence.
6. On the 26th of March 1962, Imam Bakhsh, M. H. C. (P. W. 4) and Sarangram, M. P. C. (P. W. 5), had set out for patrolling village Naukot. At about 1‑30 a.m., they heard the reports of shots near the Jamia Masjid and hurried to the scene. They saw Muhammad Ashraf and Muhammad Akram bringing out an injured person from a vacant house into the street. The injured person was Pir Bakhsh deceased. He had an injury on the chest with a revolver shot and was bleeding, but was alive. On the inquiry of the head constable Pir Bakhsh deceased told them that Mst. Aishah had illicit connection with him and when they were sitting together in the vacant house, Budho appellant had come there with a revolver, fired at them and injured them both. Mst. Aishah had gone to her house and on her cries people had turned up. The head constable sent Sarangram M. P. C. to inform the S. H. O. He went and brought Zarin Khan S. H. O. (P. W. 13), to the scene. The S. H. O. found the deceased wounded in the chest and bleeding. He also made inquiries from him and told him that Mst. Atshah had promised to meet him in the vacant house; that they met in that house and were talking together, when Budho appellant came there and fired a revolver shot at him. Thereafter the deceased was unable to talk. The S. H. O. recorded his dying declaration, but the deceased was unable to sign it. He obtained the signatures of Zahur Ahmad P. W. as a witness of the dying declaration Exh. 35. The S. H. O. heard cries from the house of Mst. Aishah and went there. He found that she had two bullet wounds, one in the breast and the other in the abdomen. She was in her senses, and he recorded her statement. He prepared her injury statement. He also prepared inquest report Exh. 38 of the deceased. He then recorded the statement Exh. 29 of Imam Bakhsh, Head Constable (P. W. 4) and signed it himself. He also recorded the statement of Sarangram, M. P. C., P. W. and sent the dead body for post‑mortem examination. He secured the lit lantern, a mat, a loin cloth and a hatchet, There were blood marks on the mat as well as on the ground in the vacant house adjoining the house of Mst. Aishah. The lock of its outer door was broken. He found three bullet holes in the wall of this house and recovered three bullet leads lying on the floor. He found marks of scaling over the wall, which intervened between that house and the house of Mst. Aishah. He arrested Budho appellant from his house and prepared his injury statement Exh. 39. The appellant produced a revolver, its licence, bullets and empty sells, which were lying on the ground of his house. The relevant mashirnama is Exh. 42. His shirt was torn and was taken into possession. He produced the appellant before the S. D. M., Mirpurkhas, for recording his judicial confession. He made a statement and was remanded to judicial custody. He had the appellant medically examined. He searched the house of the deceased in the presence of Zahur Khan P. W. and Abdul Jabbar and recovered letters Exhs. P. 18/1 to 100 written by Mst. Aishah P. W. to the deceased, vide mashirnama Exh. 39‑A. He also searched the house of Mst. Aishah in the presence of Lajpur Khan (P. W. 9) and Dr. Jamal‑ud‑Din, and recovered a typed letter and five others, Exhs. 20 to 25 and 55. He recovered photograph of Mst. Aishah Exhs. 10 to 17. In these photographs appear appellant's brother's wife, brother's daughter and sister's son and the deceased, separately. He also sent shalwar of Mst. Aishah and of the appellant to the Chemical Examiner for chemical analysis.
7. On the 27th of March 1962, Dr. Allah Bachayo (P. W. 16) performed the post‑mortem examination on the body of Pir Bakhsh and found the following injury on the body: ‑
A small opening, about 1 c. m. in diameter, on the left side of the chest about 3" below the left nipple.
On internal examination, the liver and right kidney were found ruptured and the right side of the abdominal cavity was full of blood. A bullet was removed from the kidney. The injury was due to a pistol shot. The injury was ante‑mortem, and sufficient, in the ordinary course of nature, to cause death, which was due to shock and internal haemorrhage as a result of the injury. In his opinion the deceased could have lived for about 15 minutes after the injury, but he could only have talked during the first five minutes.
8. Dr. Muhammad Shoaib examined Mst. Aishah on the 27th of March 1962, and found the following injuries on her person:‑--
(1) A circular aperture with a diameter of 1/3'' over the abdomen, 1 " above and " on the right side of the umbilicus.
(2) An oblique lacerated wound, 1" x 1/3'' x 1/8", with an aperture at its right, and penetrating into the chest cavity.
X‑ray examination showed an opaque shadow in the upper part of the right hypochandrium, and another on the lower lateral part of the chest on the right side. Vaginal swabs were taken and sent to the Chemical Examiner for the presence of semen. She was admitted as an indoor patient and was discharged on the 28th of May 1962. The injuries were caused by firearm, and were dangerous to life. On the 14th of April 1962, a bullet was removed from injury No. 2 and handed over to the S. H. O.
9. Dr. Nawaz Ali (P. W. 15) examined Budho appellant on the 30th of March 1962, and found the following injuries on his person:‑
(1) A pea‑sized abrasion on the first digit on the middle of the finger of the left hand.
(2) A pea‑sized abrasion at the base of the middle finger of the right hand, posterior part,
These injuries were about three days' old. They were simple and caused by coming into contact with some hard and blunt substance. They could have been caused by scaling over a wall.
10. The appellant denied the prosecution allegations and pleaded that he was innocent. He let no evidence in defence.
11. The evidence against the appellant consists of the motive deposed to by Haji Muhammad Rahim (P. W. 2), evidence of eye‑witnesses, namely, Mst. Aishah (P. W. 3) and her brother Malhar (P. W. 10) the oral dying declaration made by the deceased to Muhammad Ashraf (P. W. 6) Muhammad Akram (P. W. 7), Imam Bakhsh (P. W. 4) and Sarangram (P. W. 5), and the written dying declaration Exh. 35, recorded by Zarin Khan, S. H. O. (P. W. 15).
12. The learned Sessions Judge, has ruled out of consideration the oral as well as the recorded dying declarations. The dying declaration deposed to by Imam Bakhsh, Sarangram and Zarin Khan P. Ws. must be ruled out on the statements of Muhammad Ashraf and Muhammad Akram P. Ws. who have deposed that the deceased was not in proper senses and he made no dying declaration to them. It is most unlikely that he would be in a position to speak when he was brought out into the street. The recorded dying declaration must also be ruled out of consideration. The dying declaration is not even signed by the deceased, and this circumstance points to the deceased having been rendered unconscious on receipt of the injury, because his liver and kidney were ruptured.
13. The learned Sessions Judge also ruled out the evidence of Muhammad Ashraf and Muhammad Akram P. Ws. Two of the reasons which he gave were (1) that the bullet must have caused a fatal wound in the region of the heart, which is incorrect and (2) that the witnesses must have taken more than five minutes to reach the place of the occurrence. We have examined the evidence of these two witnesses with care and we agree with the learned trial Judge that the evidence is not such that we can implicitly rely on for purposes of holding that the deceased did make a dying declaration to them and named the appellant A as his assailant. The dying declaration as deposed to by the two witnesses is discrepant. Secondly, Zahur Khan contradicts their evidence and states that the deceased made no dying declaration. Thirdly, Muhammad Hanif Chowkidar has not been produced as a witness. The F. I. R. Exh. 29 is also inadmissible in evidence as it was recorded after investigation was commenced.
14. The motive is amply established on the record by the evidence of Haji Muhammad Rahim P. W. It is abundantly proved, despite her denial, that Mst. Aishah P. W. was carrying on an illicit intrigue with Pir Bakhsh deceased. The letter Exh. 18/1‑100 were recovered from the house of the deceased. These are proved by the evidence of Mst. Bushran (P. W. 14) to be in her handwriting. The appellant, it appears, wanted the deceased to stop the illicit connection and had threatened the deceased. The motive for the crime is thus clear.
15. To prove the charge of murder, we have the statements of Mst. Aishah (P. W. 3), and Malhar (P. W. 10). The evidence of Malhar has been disbelieved by the trial Court for very good reasons. His statement was not recorded until 31st of March 1962. His evidence must, therefore, be ruled out of account. We are c left with the testimony of Mst. Aishah P. W. She has not stated the hole truth, and, as was expected, has lied on many particulars. She has denied the authorship of letters Exh. 18/1‑100. She has deposed that she heard only one shot from the adjoining vacant house while the S. H. O. found three bullet marks in the walls and three pieces of lead. Three shots, therefore, must have been fired. It is not improbable that she was with the deceased when the appellant turned up and fired at the deceased. She had chosen not to say that she was there. In fact she has stated when she saw the appellant standing in the adjoining house she did not see any weapon in his hand. She only deposed to have heard a shot. It is true that soon after the appellant appeared in her house and then he had a revolver in his hand, but in what circumstances the deceased received the injury, and at whose hand has not been deposed to. It may be that it was the appellant who fired on the deceased, but the evidence is not, in our view, D sufficient to bring home to the appellant the charge under section 302, P. P. C. The circumstances are not wholly incompatible with the innocence of the appellant of this charge, of which he is acquitted.
16. Although Mst. Aishah has not told the whole truth because she had to save her honour and her position was also at stake, but there is no doubt on her evidence that it was the appellant who fired at her with a revolver. She has named him as her assailant. She has no reason to substitute him in place of the actual assailant. We find that the appellant's relations appear in photographs in which she figures. Her relations with his family were, therefore, cordial, and there is no cause whatever for suspecting that she had implicated him falsely. The appellant also does not allege so in his statement. He also bears marks of scaling over her wall. We are satisfied on her evidence that the charge under section 307, P. P. C. is made out against him. We, therefore, uphold his conviction and sentence under section 307, P. P. C.
17. We also maintain his conviction under section 457, P. P. C. and the sentence of two years' R. I. under this section shall run concurrently with the sentence under section 307, P. P. C. ordered by the trial Court. We order accordingly.
K.B.A. Appeal partly accepted.
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