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Criminal Appeal No. 324 of 1966, decided on 11th October 1968.
S. 302‑Murder‑Dying declare tion‑Deceased in dying declaration not giving full picture of occurrence‑Dying declaration not true to full satisfaction" of Court‑Unsafe to act upon such declaration‑Accused acquitted Evidence Act (I of 1872), S. 32.
Abdul Raziq v. State P L D 1964 Pesh. 67 ref.
Sultan Ahmad for Appellant.
Muhammad Abdullah Bajwa for A.‑G. for the State.
Shall (35) and 9 others with whom we are not concerned in this appeal were tried for the murder of Rehmat and attempted murder of Muhammad Hussain, Fazal Hussain and Inayat, alleged to have committed on the 4th of February 1965, at village Mota, by the Additional Sessions Judge, Gujrat, who by judgment dated 11‑4‑1966, convicted Shall under section 302, P. P. C. and sentenced him to transportation for life and acquitted the other 9 accused persons. Shafi preferred Criminal Appeal No. 324/66 from his conviction and sentence.
2. Briefly seated the facts of the case are that on 4‑2‑1965, which happened to be Eid‑ul‑Fitr day, Rehmat deceased, Fazal Hussain (P. W. 19), Muhammad Hassan (P. W. 16) and Inayat (P. W. 17) together with Hakim Ali son of Noor Dad (P. W. 18) and Niaz Ali (P. W. 20) took their meals in the house of Hakim Ali and at peshiwela. while they were returning and were close to Nawan Khu, they were set upon by 10 persons, namely, Shafi, Ahmad Khan and Sardar Khan armed with guns, Bashir and Manzoor armed with pistols, and Nadar, Siddique, Yousaf, Akram and Muhammad Hussain, armed with sofas. Ahmad Khan accused fired, hitting Fazal Hussain. Shad accused fired at Rehmat deceased; hiding him below the chest. Sardar Klan accused fired at Inayat P.W. and at Muhammad Hussain P. W. Bashir and Manzoor Ali fired their pistols without hitting any body. The party of the injured persons took refuge in the house of Hakim Ali. The motive for the assault was that 10 or 11 months prior to the occurrence, Inayat, Fazal Hussain and others had assaulted Allah Ditta, father of Ahmad Khan accused, and had fractured his legs. The challan in respect of that offence was pending.
3. Since Rehmat Ali and Fazal Hussain were in a serious condition, they were removed to Karyanwala Police Station. Muhammad Hussain (P. W. 16) lodged F. I. R. hxh. P. D. on 4‑2‑1965 at 7 p.m., the distance between the village Mota and Karyanwala being 7 miles. Tl:e report was registered by S. I., Muhammad Bashir (P. W. 21).
4. Sub‑Inspector Muhammad Bashir, prepared the injury statements of the injured persons and sent them to civil Dispensary, Karyanwala, for medical examination. The same day at 9‑15 p.m. S. I. Muhammad Bashir, applied to the Medical Officer, Incharge, Dispensary Karyanwala, to know if Rehmat injured parson was fit to make a statement. The Doctor certified that he was fit to make a statement. His certificate is Exh. P. Z./1. thereafter S. I. Muhammad Bashir, recorded the statement of Rehmat (Exh. P. X.). It was attested by Muhammad Bashir P. W. 11 and Ch. Muhammad Aslam P. W. 12. Similarly S. I. Muhammad Bashir recorded a statement of Fazal Hussain, P. W. (who however survived). Rehmat and Fazal Hussain were referred to Civil Hospital, Gujrat.
5. On 5‑2‑1965 S. I. Muhammad Bashir inspected the spot. He got prepared a site plan Exh. P. T. Foot Constable, Muhammad Latif, produced before him bloodstained shirt Exh. P. 1 of Rehmat deceased. The Investigating Officer also took into possession blood‑stained clothes (P. 2, P. 3 and P. 4) of Fazal Hussain, the blood‑stained shirt Exh. P. 6 of Muhammad Hussain and blood‑stained clothes (P. 7, P. 8 and P. 9) of Inayat. He arrested Ahmad Khan and 4 other accused persons on 7‑2‑1965. He arrested Bashir and Siddique on 11‑2‑1965. Shall, Yousaf and Sardar Khan had absconded. Shafi accused was eventually arrested on 19‑2‑1965 during the night time from his house.
6. On 5‑2‑1965 at 1 a. m. Dr. Ghulam Ahmad, Medical Officer, Gujrat, examined Rehmat and found the following injuries on his person:‑‑
Gun‑shot wound of enterance " x 1 " depth not probed on the right side of abdomen 1 " away from the midline and just below the right costal margin. The margin of the wound was lacerated inverted and had become blackish. The patient's condition was precarious. The abdomen was distended. The patient was pulseless, pale and restless. A hole was seen in the shirt P. 1 opposite the wound which was signed by, the Doctor and was handed over to the police constable. It was caused by a gun‑shot with about 12 hours duration.
Rehmat expired at 8‑10 a.m.
The same day at 1‑40 a.m., the said doctor examined Fazal Hussain P. W. and 10 gun‑shot injuries were found on his person.
7. On 5‑2-1965, at 2 a.m. Dr. Ghulam Ahmad performed the post‑mortem examination on the dead body of Rehmat. He found the following injuries externally:‑
A gun‑shot wound of enterance, " x ", on the right side of abdomen, 1 " away from the midline and just below the right ,costal margin. The margins of the wounds were lacerated inverted and blackish. On dissection, it was found that the pellet passed through the interior abdominal wall then punctured the liver's small lobe at its middle, went back and passed through the spleen. There were only remains of the spleen mixed with clotted blood and was not in its normal shape. A pellet was found under the skin in the lumber region.
Death in the opinion of the doctor was due to shock and hemorrhage resulting from injury No. 1. Injury No. 1 was sufficient to cause death in the ordinary course of nature. Post‑mortem report is Exh. P. P.
8. The accused persons denied the allegations against them. Ahmad Khan accused stated that the complainant party had caused injuries to his father, fracturing his legs, and that a case in respect of the said offence was pending. The complainant party wanted him to compromise but as he did not agree, they falsely implicated him in this case. Shall appellant admitted that Allah Ditta father of Ahmad Khan had been assaulted and that a case under section 307, P. P. C. was pending against Fazal Hussain, Inayat and others. He further denied the assault in question. Other accused persons similarly denied the charge. They led no defence.
9. At the trial Muhammad Hussain (P. W. 16) fully sup ported the prosecution version set out above. He specifically stated inter alia that Shafi accused fired, hitting Rehmat deceased below his chest. Inayat (P.W.18). Fazal Hussain (P. W. 19) similarly supported the aforesaid version. Niaz Ali (P.W.20), however, made certain concessions. He referred to the firing by the accused party but could not describe it in detail. As regards Manzur and Bashir, he stated that he could not make out if they were armed with pistols as his eyesight was weak. He was declared hostile and was allowed to be cross‑examined.
10. Undisputedly there was enmity between the complainant party and the accused. The challan under section 307, P. P. C. relating to the assault on Allah Ditta, father of Ahmad Khan accused, was still pending.
11. Besides, the eye‑witnesses are closely related and interested. Muhammad Hussain (P. W. 16) and Inayat (P. W. 17) are brothers. Fazal Hussain (P. W. 19) and Niaz Ali (P. W. 20) are brothers. Fazal Hussain P. W. complained that only two persons had beaten Allah Ditta and his son Ahmad Khan involved six persons in the case. He added as follows:
"It is correct that we are on inimical terms with the accused since long. It is correct that as some persons who were innocent and belonged to our party were falsely implicated by the other side in the beating of Allah Ditta Thekedar, in the present case we have also implicated some innocent persons. It is correct that after the incident in which Allah Ditta Thekedar was beaten Hakim Ali, my brother P. W. was given beating by the other party and 43 blows were inflicted on his person.
12. The learned Additional Sessions Judge regarded it unsafe to rely on the direct testimony of these eye‑witnesses. In his view when the party had three guns (or even two pistols), inclusion of five men armed with sotas was unnecessary. He held that there was no case against the accused persons alleged to have been armed with sotas. He noted that no injury was caused by Bashir and Manzur Ali and that according to Niaz Ali P. W. they had not used the pistols; he gave both the accused persons benefit of doubt. As regards Ahmad Khan and Sardar Khan, he held that there was positive enmity and, therefore, not believing the eye‑witnesses, he gave them the benefit of doubt. He, therefore, acquitted the said nine accused persons. As regards Shall appellant, he held that the statements of the eye‑witnesses, supported by the dying declaration made by Rehmat deceased, could be acted upon. Accordingly, he held Shafi appellant guilty under section 302, P. P. C. and sentenced him to transportation for life.
13. The learned counsel for the appellant raised the following contentions:‑
(1) The certificate (Exh. P. Z/1) granted by the doctor is questionable. Probably Rehmat was not produced before him. Rehmat was not in a fit state of mind to make a statement as he was delirious. Other persons with him at that time prompted and tutored him. The statement alleged to have been made by Rehmat, therefore, was not a true and voluntary statement.
(2) The Court did not accept that Nadar, Siddique, Yousaf, Muhammad Akram, Muhammad Hussain, Manzoor Ali and Bashir were present. The Court was not justified in accepting and acting upon a dying declaration a part of which was inconsistent with the conclusion reached by the Court after mature deliberation.
(3) The evidence of P. Ws. 16, 18 and 19 was not acceptable because it carne from related and interested persons, hostile to the accused. Similarly, the dying declaration was held to be partly untrue. The defective dying declaration could not be pressed into service to corroborate the defective and questionable direct testimony.
14. Sub‑Inspector, Muhammad Bashir, P. W. 21, stated that on 4‑2‑65 at about 9‑15 p. m., he made an application to the Medical Officer Incharge, Karyanwala Dispensary, to state if Rehmat injured person was fit to make a statement and that the Doctor recorded his certificate Exh. P. Z/1. The Doctor supported this version in his supplementary statement dated 6‑4‑66. The learned counsel contended that Rehmat must not have been produced before the Doctor, otherwise the Doctor could easily have examined him and given his Medico‑legal Report when he did so in the case of Muhammad Hussain and Inait P. Ws. It is in evidence that Rehmat was in a precarious condition and he was referred to the Civil Hospital, Gujrat. Fazal Hussain stated that Rehmat himself, and other injured persons were taken to Karyanwala Police Station and from there to the Hospital at Karyanwala. He also stated that there the statement of Rehmat and his own statement were recorded in the Civil Hospital. Karyanwala Sub‑Inspector, Muhammad Bashir supported him. Muhammad Bashir P. W. 11 and Muhammad Aslam P. W. 12 stated that the statement Exh. P. X. was recorded by Muhammad Bashir, S. I., at Karyanwala Hospital after the Doctor had recorded his certificate. Accordingly we accept that the certificate Exh. P. Z/1 was recorded by Dr. Ataur Rehman Khan, after he was satisfied that Rehmat was fit to make a statement, and we further accept that, therefore, the statement of Rehmat, Exh. P. X. was duly recorded by S. I., Muhammad Bashir.
15. Muhammad Bashir P. W. 11 attesting witness of the dying declaration stated as follows:‑
"It is correct that Rehmat would talk deliriously sometime. It is correct that during this statement he would go in a condition of fit and then after passage of 2/3 mutes resume his senses and restop. Muhammad Hussain and Inayat were present. It is correct also that when Rehmat would stop making the statement, Muhammad Hussain and Inayat would prompt him."
It is remarkable that the Doctor, at the end of the statement, did not record that Rehmat continued to be fit to make the statement. The concluding remarks made by Muhammad Bashir P. W. 11 make the contents of the dying declaration questionable‑at any rate, it could not be said that the whole of the statement was a voluntary statement made by Rehmat deceased.
16. Assuming that the dying declaration Exh. P. X. was voluntarily made by Rehmat deceased, a part of it is inconsistent with the‑findings of the Court. According to Exh. P. X., apart from Shafi, appellant, nine other persons were present and had taken part in the assault, whereas according to the findings of the Court those nine persons were not there, or, at any rate, were not accountable. Besides in Exh. P. X., Rehmat did not give a full picture of the occurrence. In other words, the dying declaration Exh. P. X. is not true to the "full Satisfaction" of the Court, as explained in the case reported as Abdul Raziq v. State (P L D 1964 Pesh. 67).
17. The statements of Muhammad Hussain, Inayat, Hakim Ali, Eazal Hussain and Niaz Ali have not been accepted, so far as the accused other than Shafi were concerned. So far as Shafi appellant was concerned, their statements could be accepted only if they were corroborated. The dying declara tion Exh. P. X. is itself a questionable document, as. a part of it is repugnant to the conclusion reached by the Court in respect of Ahmad Khan and others. It will be unsafe indeed to hold that so far as Shafi appellant is concerned, the dying declaration can furnish confirmatory evidence and thus make statements of P. Ws: 16 to 20 acceptable. We have carefully considered this aspect and are of the view that, so far as Shafi appellant is concerned, it is unsafe to act on the ocular evidence, or to act upon the dying declaration Exh. P. X., or to act upon both, treating each as confirmatory evidence of the other.
18. In view of what have been stated Above, the appeal is accepted. The appellant is set at liberty, provided he is not requited in any other case.
Appeal accepted.
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