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Criminal Appeal No. 392 of 1967 and Confirmation Case No. 1 of 1968, decided on 15th October 1968.
Credibility--Fact that witnesses not respectable persons-Held, would not detract from evidentiary value of their evidence.
S. 32-Dying declaration criticized on ground of being at variance with evidence of prosecu tion witnesses-Dying declaration describing accused as being armed with lathis but according to witnesses they were armed with hatchets-Contradiction, held, not sufficient for ruling dying declaration out of consideration.
Ss. 302, 324 & 325-Evidence of prosecution witnesses coupled with dying declaration and circumstantial evidence leaving no room for doubt that accused were guilty of offences charged with-Conviction maintained.
S. 302-Murder-Sentence One of accused sentenced to death and on same evidence remaining accused sentenced to transportation for life-Evidence establishing that it was shot from pistol used by another accused sentenced to transportation for life, that caused fatal injuries to deceased Sentence of death reduced to transportation for life.
Azizullah K. Shaikh for Appellants.
S. Murtaza Hussain for the State.
Dates of hearing : 4th and 8th October 1968.
Appellant Abul has been convicted under sections 302, 324 and 325/149 and 148, P. P. C., and 13 (d) of the Arms Ordinance and sentenced to death, rigorous imprisonment for 18 months, rigorous imprisonment for two years, rigorous imprisonment for one year and rigorous imprisonment for one year respectively. The appellants Mitho, Muhammad Ali, Ghulam Nabi and Khairo have been convicted under sections 302, 324 and 325 read with section 149, P. P. C. and sentenced to transportation for life, rigorous imprisonment for 18 months and rigorous imprisonments for two years each respec tively. Appellant Muhammad Ali has in addition been convicted under section 148, P. P. C. and sentenced to suffer rigorous imprisonment for one year. Appellants Mitho, Ghulam Nabi and Khairo have also been convicted under section 147, P. P. C. and sentenced to suffer rigorous imprisonment for nine months each. The sentences of imprisonment have been directed to run concurrently. The appellants have filed an appeal. The matter is also before us for confirmation of the sentence of death passed on appellant Abul. We shall dispose of the appeal filed by the appellants and the murder reference under this judgment.
2. The facts of the prosecution case briefly are that com plainant Soomar and appellant Abul had fought with each other about two years before this incident as a result of which Abul had received injuries. A case against Soomar and others had been filed on behalf of appellant Abul in which the parties filed a compromise in Court. Qazi Muhammad Ibrahim, the Nekmard the parties, even after this compromise settled up the dispute the parties on Holy Quran but it is alleged that appellant Abul and his party harboured a grievance against Soomar. The allegation of the prosecution also is that on account of this grievance the house of Yar Muhammad had been burnt by the appellants some time before this incident. It appears that the appellants still nursed a grievance against Soomar and therefore file in a body on 24th June 1966 between 3 and 4 p.m. in the bungalow of Dr. Hamid Ali at Halani where Soomar and his son Yar Muhammad were working as carpenters. Out of the five appellants, appellants Abul and Mitho were allegedly armed with pistols whereas the rest of the appellants were armed with hatchets. On the appellants coming into the bungalow of Dr. Hamid Ali, appellant Abul fired his pistol at Soomar and Yar Muhammad. They therefore took up their Waholas and attacked the appellants on account of which injuries were caused Mitho and Khairo appellants. Mitho then fired a shot from his pistol which hit Yar Muhammad resulting into his fall on the ground. Hatchet injuries were also caused to Yar Muhammad and Soomar. Mirch and Muhammad, who were present there, this incident. On the cries raised by them, Haji, who was zing in a hotel nearby, rushed to the scene and saw all the appellants differently armed running away. Haji was also informed by Soomar, Mirch and Muhammad that injuries to Yar Muhammad and Soomar had been caused by the appellants. Haji then went to police station at Kandiaro which was at a distance of six miles from the scene of offence and lodged his first information report Exh. 8 at 7 p.m. which was recorded by Ali Sher P. W. 7.
3. The police during the course of investigation visited the scene of offence and prepared its mashirnama Exh. 25. An empty cartridge found to have been lying on the scene was also cured under this mashirnama. The statements of the witnesses ire then recorded. Injured Yar Muhammad and Soomar had the meantime been removed to the hospital for treatment and certificates.
4. Appellants Abul and Mitho were then arrested on 29th June 1966. Abul after his arrest made a statement regarding the production of his pistol and led the police to Dr. Hamid Ali's garden and produced from the fence of it a pistol, Art. C, which was secured under mashirnama Exh. 23 in the presence of mashir Khuda Bakhsh. Mitho also made a statement under section 27 of the Evidence Act and led the police to a place where From sur grass he produced a pistol, Art. D, which was secured under mashirnama Exh. 24 in the presence of the same mashir. The condition of Yar Muhammad on 29th June 1966 was Called to be precarious and as such Head Munshi and Third lass Magistrate Abdullah Khan P. W. 6 was called to record his dying declaration. He accordingly recorded the dying declar ation Exh. 29 of Yar Muhammad on 29th June 1966 at 5-30 a.m. appellants Muhammad Ali and Ghulam Nabi were then arrested on 30th June 1966. Each one of them produced a hatchet, Arts. A and B, which were secured under mashirnamas Exhs. 26 and 27 respectively in presence of mashir Khuda Bakhsh. The hatchets recovered from Muhammad Ali and Ghulam Nabi were sent to the Chemical Analyser whose report shows that there was human blood on them. The pistols produced by Abut and Mitho sent to the Ballistic Expert along with the empty cartridge secured from the scene of offence. Muhammad Sarwar, Ballistic Expert, P. W. 8 has stated in his evidence that on examination of the pistols and the cartridge sent to him he found the crime empty to have been fired from the pistol produced by appellant Mitho.
5. Jamal, brother of Mitho, had also filed a counter first information report which has been brought on record as Exh. 42. The mashirnama of vardat shown by Jamal was also prepared and it has been brought on record as Exh. 34. After the usual investigation was concluded, the appellants were challaned.
6. The appellants, when questioned, denied the allegations made against them and alleged that the case against them was false. Appellants Abut, Muhammad Ali and Ghulam Nabi denied their presence at the scene of offence whereas appellants Mitho and Khairo admitted their presence and alleged that they were passing by the bungalow of Dr. Hamid Ali when Yar Muhammad and Soomar attacked them with Waholas and caused them injuries. According to their statements, it was one of the injured persons who wanted to fire the pistol at them which by co-incidence hit Yar Muhammad and brought about his death. They have, however, admitted previous enmity with Soomar and others. They have examined Tahir Hussain as a defence witness.
7. The question whether Yar Muhammad and Soomar sustained injuries and the question whether Yar Muhammad died on account of the injuries inflicted on him are not disputed. The evidence of Dr. Bashiruddin Ahmad Exh. 40 also establishes beyond doubt the fact that Yar Muhammad and Soomar had sustained injuries and that the injuries inflicted on Yar Muhammad were both ante-mortem and sufficient in the ordinary course of nature to cause death. The evidence of the witnesses has also established this issue beyond doubt. Even the appellants Mitho and Khairo have admitted it. They also admitted the death of Yar Muhammad being the result of the injuries inflicted on him.
8. The only question, therefore, that needs to be decided in this appeal is whether the appellants in prosecution of their common object inflicted injuries on Yar Muhammad and Soomar and are, therefore, guilty of the offence with which they have been charged. The prosecution for the purpose of proving their case have in main, relied upon the evidence of Soomar P. W. 3, Mirch P. W. 4 and Muhammad whose evidence has been brought on record under section 33 of the Evidence Act as Exh. 39. Out of these witnesses Soomar is admittedly the father of deceased Yar Muhammad and was one of the persons who had received injuries at the time of the incident. His evidence is to the effect that he had quarrelled with appellant Abut some time before this incident on account of which a case against him and others had also stated that that case was compromised both in Court and through their Nekmard Muhammad Ibrahim. He has also stated that despite the compromise of the case between the appellant Abut and Soomar Abut and his party harboured a grievance against him and, therefore, came along with the other appellants in the bungalow of Dr. Hamid Ali at Halani on 28th June 1966 at about 4 p.m. According to his evidence. Abut and Mitho were armed with pistols whereas the remaining three appellants were armed with hatchets. His evidence further is that Abut, out of the appellants, on coming into the bungalow of Dr. Hamid Ali fired his pistol at him on account of which he and his son Yar Muhammad took up Waholas and sticks and attacked the assailants. He has admitted that they caused injuries in self-defence to Mitho and Khairo. He has also stated that Mitho then fired a pistol shot which hit his son Yar Muhammad as a result of which he fell down but was quite conscious and could speak. His evidence also is that Ghulam Nabi and Muhammad Ali caused injuries to him and to his son Yar Muhammad with hatchets also. His evidence further is that Mirch and Muhammad were present in the bungalow and saw this incident and identified the appellants. His evidence also is that on cries raised by them, Haji came on the scene who was informed by them all that the appellants had caused injuries to them. The evidence of this witness is criticized by the learned counsel for the appellants on the ground that it is interested and inimical, the enmity between him and the appellants being admitted. It is true that the evidence of Soomar is both interested and inimical but this is not the only evidence on record on which the conviction of the appellants has been founded. The presence of this witness at the place of the incident cannot on any count be disputed because of injuries on his person which have been certified by Dr. Fazal Muhammad in his evidence Exh. 40-B. The appellants Mitho and Khairo have also admitted their presence at the time of the incident.
9. The evidence of these witnesses is fully supported by the evidence of Mirch and Muhammad who have in every detail supported the evidence of Soomar. Their evidence is criticized On the ground that they are not respectable persons as they had been previously convicted in some other cases. The fact that they are not respectable persons would not in any way detract from the evidentiary value of their evidence. The question that we have to decide at the present moment is whether they were present and saw the incident and whether they had any grounds for falsely implicating the appellants. We have scrutinized their evidence very minutely and we are of the view that they were present at the time of the incident and saw it. There is also no ground whatever appearing on the record of the case to suggest any motive on the part of these witnesses to falsely implicate the appellants. These witnesses being independent, thus evidence, would lend necessary corroboration to the evidence of Soomar to make it believable. Apart from the evidence of Mirch and Muhammad, there is the evidence of Haji P. W. 2 who was pit the time of the incident sitting in a hotel nearby and came to the scene on hearing the cries. According to his evidence, he saw all the five appellants running out of the bungalow of Dr. Hamid Ali with weapons in their hands. He has also stated that the deceased and the other witnesses informed him that the appellants had caused injuries to the deceased and Soomar. The evidence of these witnesses receives very strong support from the dying declaration Exh. 29 made by deceased Yar Muhammad on 9th June 1966 at 5-30 a.m. which was recorded by Abdullah P. W. 6 Head Munshi and Third Class Magistrate. It is not disputed that this dying declaration was not recorded. The dying declaration is criticised firstly on the ground that it is at variance with the evidence of the witnesses in that according to the dying declaration Muhammad Ali, Ghulam Nabi and Khairo were armed with lathis whereas according to the evidence of the witnesses they were armed with hatchets. This contradiction, in our opinion, is not sufficient for the purpose of ruling out of consideration the dying declaration. It is established by evidence on record that this dying declaration was recorded about 21 hours before the deceased died. The deceased, therefore, must have been in such a condition that he would not be able to exactly describe the weapons that each of the appellants was holding. The dying declaration, however, is absolutely consistent with the main facts of the case and does recite the part played by the appellants and also gives the names of all of them. This dying declaration is further criticized on the ground that it had been inspired by the relations of the deceased who were found to be present with him at the time when he made the dying declaration. This argument of the learned counsel has not appealed to us because if it had been sponsored and had been made as a result of tutoring then the divergence between the dying declaration and evidence of the witnesses would not have appeared in the dying declaration.
10. The evidence of the witnesses and the dying declaration is further supported by the fact that Abul and Mitho produced a pistol each on 29th June 1966 the day on which they were arrested which were secured under mashirnamus Exhs. 23 and 24 respectively in the presence of mashir Khuda Bux P. W. 5. Khuda Bux P. W. 5 and the Investigating Officer have fully supported the case of the prosecution. The appellants Muhammad Ali and Ghulam Nabi had also produced a hatchet each on 30th June 1966 which were secured under mashirnamas Exhs. 26 and 27 respectively before the same mashir. The hatchet secured from Muhammad Ali and Ghulam Nabi were sent to the Chemical Analyser whose report Exh. 33 shows human blood on them. The pistols recovered from the appellants Abul and Mitho were also sent to. the Ballistic Expert Muhammad Sarwar P. W. 8 whose evidence has established that the crime empty secured from the scene of offence under mashirnama Exh. 25 was found to have been fired from the pistol produced by Mitho and secured under mashirnama Exh. 24. The fact that appellants Mitho and Khairo were injured also is a circumstance which supports the evidence of the witnesses considerably against them. The evidence of Dr. Fazal Muhammad Exh. 40-B has established that both the appellants had injuries on their persons. These appellants have also admitted their presence at the time of the incident and have admitted to have received injuries in the scuffle at that time.
11. The case of the appellants that they did not commit the offences is not borne out by any evidence on record. 'The statement of Mitho and Khairo that they were passing by the bungalow of Dr. Hamid Ali at the time of the incident when deceased and Soomar attacked them is not even borne out by the record because the mashirnama of vardat outside the bungalow Exh. 34 did not show any blood there. The blood was found inside the bungalow of Dr. Hamid Ali where Yar Muhammad and Soomar were working for which mashirnarna Exh. 25 was made. The evidence of defence witness Tahir Hussain has also not been of any assistance in this case because it deals only with production of electoral rolls.
12. The evidence of the witnesses coupled with the dying declaration and the circumstantial evidence, in our opinion, has left no room for doubt that the appellants were guilty of the offences with which they had been charged.
13. The only question that needs consideration in this appeal is whether the death sentence, should have been passed on Abul under section 302, P. P. C. when the rest of the appellants for the same offence had been sentenced to transportation for life. The probabilities of the case are that although Abul fired the first shot from his pistol, it did not hit Yar Muhammad otherwise he would not have used his Waholas or stick, on both Mitho and Khairo and caused injuries to them. The evidence establishes that it was the shot fired from the pistol used by Mitho that Yar Muhammad received injuries and died on account of them. The crime empty secured under mashirnama Exh. 25 was also found by Muhammad Sarwar P. W. 8 Ballistic Expert to have been fired from the pistol produced by Mitho but Mitho has been given the sentence of transportation for life under section 302, P. P. C. Under these circumstances, we are of the view that the death sentence passed on Abul should not have been passed. On this view of the matter although we see no merit in the appeal filed by the appellants and dismiss it, we reduce the sentence of death passed on Abul under section 302, P. P. C. to transportation for life.
14. With this modification the appeal filed by the appellants stands dismissed.
Appeal dismissed.
Sentence reduced.
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