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Criminal Appeal No. 505 of 1967, decided on 21st January 1969.
S. 302‑Murder‑Crime weapon‑Recovery of crime weapons not supported by independent and reliable evidence‑Recovery eliminated from consideration.
Ss. 32 & 45‑Medico‑legal report‑Doctor recording post‑mortem report proceeding abroad Trial Court taking into consideration statement that such Doctor not expected to return in near future and permitting another Doctor to prove report‑Contention that trial Court did not record conclusion that attendance of Doctor could not be procured without delay or expense‑Held, without force‑Another Doctor was competent to formally prove medico‑legal report recorded by examining Doctor.
State v. Sharif P L D 1957 Lah. 669 rel.
S. 302‑Murder‑Evidence Medical evidence corroborating ocular evidence and all evidence in turn corroborating dying declaration‑Conviction may be based on such evidence.
Zabta Khan v. State P L D 1963 Pesh. 66 ref.
Ss. 302, 304 & 307‑Murder --Accused mercilessly causing large number of injuries to deceased with sharp‑edged weapons resulting in his death within 5 hours‑Reason able to conclude that accused caused injuries with intention to cause deceased's death or had knowledge that injuries were likely to cause death‑Case, held, falls under S. 302 and not under S. 304 or 307.
Falak Sher v. State P L D 1962 Lah. 728 ref.
S. 302‑Murder‑Sentence Fatal injury on deceased not possibly ascribable to any one or other of several accused‑Accused, hell, entitled to lesser penalty Sentence of death reduced to that of transportation for life.
M. Saleem and Azhar Mafeez for Appellants.
Mian Aslam Riaz Hussain, Asstt. A.‑G. for the State.
Ch. Azam Ali for the Complainant.
Barkat (35) and Muhammad Siddique (50), sons of Ali Akbar, Safdar (32) son of Ali Akbar alias Bodi and Abdul Ghafur (25), were tried by the Additional Sessions Judge, Sheikhupura for the murder of Sardar Ali son of Ali Bukhsh on 13‑3‑1966 and for robbing him of his pistol. (a) By judgment dated 24‑7‑1967, they were convicted under section 302/34, P. P. C. Barkat and Muhammad Siddique were sentenced to suffer death and also to fine of Rs. 5,000 each, or in default, to undergo R. f. for three years each. One‑half of the fine realised was directed to be paid to the heirs of the deceased as compensation. Safdar and Abdul Ghafur were sentenced to transportation for life. (b) They were also convicted under section 394/34, P. P. C. and were sentenced to five years' R. I. each. The substantive sentences of imprison ment of Barkat and Muhammad Siddique were to be carried into effect if their death sentences were not confirmed by the High Court. The substantive sentences of imprisonment of Safdar and Abdul Ghafur were to be concurrent. The convicts preferred the present appeal from their convictions and sentences. The Additional Sessions Judge, referred the case under section 374, Cr. P. C., for confirmation of the sentences of death. This judgment will dispose of the appeal and the reference together.
2. The prosecution case, briefly stated, is as follows : On 13‑3‑1966, Safdar Ali deceased and Sardar Ali son of Alam Din (P. W. 3), accompanied by Barkat (P. W. 12), went from their village Bhago Dyal to the neighbouring village Jam Gill to ask Muhammad Din of Jam Gill for conciliation between Muhammad Din's daughter, Mst. Sabiran, and her husband, Bashir, brother- in‑law of Barkat P. W. Muhammad Din agreed to send his daughter to the house of Bashir after eight days. Sardar Ali deceased, Sardar Ali P. W. and Barkat P. W. were returning to village Bhago Dyal. The distance between village Jam Gill and Bhago Dyal, is about three squares. As they approached the bridge of Chakkian Minor, and were at a distance of about 20 karams from it, there emerged out of a wheat crop the four appellants. Muhammad Siddique had a Kassi and the others had a Drant each. Muhammad Siddique gave a Kassi blow to Sardar Ali (deceased) on his left calf close to the knee. Sardar Ali (deceased) fell down on the ground. Thereon, all the four assailants caused injuries to him with their respective weapons. Barkat and Sardar Ali P. Ws. out of fear, stepped a few paces back and witnessed the occurrence helplessly. When innumerable injuries had been caused to Sardar Ali deceased, Abdul Ghafur and Muhammad Siddique appellants removed the licensed pistol hanging round the neck of the deceased. Then they fled away. Muhammad Hussain (P. W. 13), who happened to be close by, also witnessed the occurrence.
The motive for the occurrence was that nine or ten years before, Siraj Din, mother's sister's son of Sardar Ali (deceased) was murdered by Muhammad Siddique and Barkat appellants and their two brothers (Muhammad Din and Sharif), that they were sentenced therefor and after their release were determined to wreak vengeance on Sardar Ali deceased, who was a prosecution witness in that case. Sometime before this occurrence, proceedings under section 107/151, Cr. P. C. were taken against Siddique and others, who believed Sardar Ali to be responsible for the same.
After the assailants had left, Safdar Ali (P. W. 15), brother of the deceased, and other persons arrived at the spot. Safdar Ali P. W. arranged for the transport of Sardar Ali to the hospital at Narang.
Sardar Ali deceased was admitted in the hospital at Narang at about 3‑30 p.m. Dr. Abdur Razzaq, A. M. O., Civil Dispensary, Narang, in view of the serious condition of Sardar Ali, sent a Ruqqa (Exh. P. H.) to S. H. O., P. S. Narang, requesting him to make arrangements for recording the statement of Sardar Ali. As no senior police officer was present at the Police Station, M. H. C. Anwar Hussain (P. W. 4) hurried to the civil dispensary. In his note (Exh. P. J.) Anwar Hussain asked Dr. Abdur Razzaq to certify if Sardar Ali was fit to make a statement. The doctor certified that Sardar Ali was able to make a statement (vide Exh. P. J. 1). Thereon, Anwar Hussain P. W. recorded the statement of Sardar Ali (Exh. P. K.). The statement was concluded at 4‑30 p.m. It was attested by Bashir Ahmad (P. W. 10), Muhammad Hayat (P. W. 11) and Dr. Abdur Razzaq.
On the basis of the statement (Exh. P. K.), F. I. R. (Exh. P. K./1) was registered at Police Station, Narang. It was recorded by A. S. I. Muhammad Amin (since deceased).
3. A. S. I. Muhammad Amin proceeded to the hospital and prepared the injury statement and inquest report and sent the dead body to the mortuary for post‑mortem examination. 7 hen he proceeded to the spot to investigate the case. On reaching the spot he found Sardar Ali, Muhammad Hussain and Barkat P. Ws. present there. He took into possession blood‑stained earth vide memo. Exh. P. A. He also took into possession a cover of a pistol lying close to the spot of occurrence, vide memo. Exh. P. B. The memos. were attested by Sardar Ali and Muhammad Ramzan P. Ws. On 15‑3‑1966, F. C. Murid Hassain P. W. brought clothes (P. 8 and P. 9), of the deceased, which had been delivered to him by the doctor after post‑mortem examination. He produced them before the Investigating Officer, who took the same into possession vide memo. Exh. P. R. On 16‑3‑1966, A. S. I. Muhammad Amin arrested Barkat, Safdar and Ghafur appellants at Railway Station Khunda Ladhaka. On search of Barkat appellant, the Investigating Officer recovered, concealed in his left dub, pistol (P. 6) and 12‑live‑cartridges and four missed ones (P. 7/1‑16) and took the same into possession, vide memo. Exh. P. M. The memo. was attested by Ch. Nathe Khan, Chairman of Mirowal Union Council (P. W. 16) and Muhammad Din (not produced). The same day, while under arrest, Safdar appellant led to the recovery of blood‑stained drant (P. 2) lying concealed in his residential house, Barkat appellant led to the recovery of blood‑stained drant (P. 3) lying concealed in an Almirah in his house, and Abdul Ghafur appellant led to re covery of a blood‑stained drant, these were taken into possession vide Exhs. P. C., P. D. and P. E. respectively. The memos. were attested by Muhammad Ramzan P. W. and Muhammad Ali (not produced). Muhammad Siddique appellant was an absconder and was arrested by the Police Station Sadar, Sheikhupura, under section 109, Cr. P. C. and was made over to the Police of P. S. Narang. On 5‑4‑1966, Siddique appellant led A. S. 1. Bashir Hussain (P. W. 17) to the recovery of Kassi (P. 5) from a certain field close to the place of occurrence. The Kassi was blood‑stained and taken into possession by P. W. 17 vide memo. Exh. P. J. The memo. was attested by Muhammad Ramzan P. W. and Muhammad Ali (not produced). On 25‑3‑1966 Muhammad Khan Patwari (P. W.) prepared the site plan (Exh. P. H).
In due course, the drants, the Kassi and blood‑stained earth were sent to the Chemical Examiner, who opined that the same were stained with blood. The Serologist, who examined the scrappings on the aforesaid articles . . . . . was of the opinion that the same were stained with human blood (vide reports Exhs. P. T., P. U., P. V. and P. V./1).
4. On 13‑3‑1966, at 4‑30 p.m., Dr. Abdur Razzaq examined Sardar Ali and noticed about 11 injuries on his person when Sardar Ali expired. The examination remained incomplete.
On 14‑3‑1966, at 1‑30 p.m., Dr. Nisar Ahmad Kayani, performed the post‑mortem examination on the body of Sardar Ali and found the following injuries :‑
(1) A transverse incised wound, 3" x " on the right side of head passing over the middle of right ear cutting the ear and the skull bones underneath.
(2) A transverse incised wound 1" x " bone deep on the frong of right fore‑arm 3 " above the wrist. The ulna bone underneath was fractured.
(3) An incised wound " x " deep on the back of right fore‑arm " lateral to injury No. 2, on the same level.
(4) An incised wound " x " on the back of right fore arm 2f above injury No. 2.
(5) An oblique incised wound 2 " x 1" x 1" on the front of right thigh 6 " above knee.
(6) A transverse incised wound 7" x 1 " on the front of the right knee cutting patellar bone and femur bone.
(7) A curved abrasion 2 " x " on the postero lateral aspect of right thigh 3" above injury No. 6.
(8) A transverse incised wound " x " x bone deep on the front of right leg 3 1/8" below injury No. 6. The lateral end of the wound is converted into an abrasion 1 " x ".
(9) A transverse incised wound 6" x 1 " on the front of right ankle. The talus bone underneath was cut and ankle was partially separated.
(10) An oblique incised wound 2 " x " x bone deep on the front of right leg 2" above the medial malleolus.
(11) A transverse incised wound 3 " x 1 " x " on the front of left ankle‑joint. The tallous bone underneath was cut and ankle‑joint was partially amputed.
(12) A transverse incised wound 3" x 1 " x 2 " on the posterio medial aspect of left leg, 3 " above injury No. 11. Both the bones of the legs underneath were fractured.
(13) A transverse incised wound " x 3/8" on the front of left leg " lateral to injury No. 12, on the same level.
(14) An incised wound 1" x " x 1" on the lateral aspect of left leg 1" above injury No. 12. The fibula bone underneath was cut.
(15) An incised wound " x 1/8" x skin deep on medial aspect of left leg 2 " above injury No. 12.
(16) An oblique incised wound 2 " x " x 3" on the posterior aspect of left leg 3" below the knee.
(17) An oblique incised wound 1 " x 1/8" x skin deep on the back of root of left thumb.
(18) A transverse incised wound 1 " x " on the lateral aspect of left wrist. The lower end of the radius bone underneath was fractured.
(19) An oblique incised wound 2 " x " on 1" deep in front of left fore‑arm two inches above injury No. 18. The radius bone underneath was fractured.
(20) An incised wound 1 " x 1/8" on the posterio medial aspect of left fore‑arm " medial to injury No. 19. The ulna bone underneath was fractured. Injury Nos. 19 and 20 join with each other under the skin.
(21) An incised wound " x 1/8" on the front of left fore arm " above injury No. 20.
(22) A swelling 6" x 4" on the front of left elbow with three abrasions on it. The maximum 2 " x 1/8 " and the minimum 1 " x 1/8" placed in different directions.
(23) An abrasion 3" x 1/8" on the left side of the cheek starting from the angle of the mouth.
(24) An abrasion " x 1/8" on the front of the left leg over the thyroid cartilage.
Injuries Nos. 7, 22, 23 and 24, were caused by blunt weapon while the rest were caused by sharp‑edged weapon. Injuries Nos. 1, 11 and 12 could be fatal individually.
5. Dr. Nisar Ahmad Kayani left for Saudi Arabia on deputation and was not expected to return early. Dr. Bashir Ahmad, who identified the handwriting of Dr. Nisar Ahmad Kayani, duly proved the post‑mortem examination report recorded by Doctor Kayani.
6. At the trial, the ocular evidence was furnished by Sardar Ali (P. W. 3), Barkat (P. W. 2) and Muhammad Hussain (P. W. 13). They substantially gave the details of the occurrence, as reproduced above.
7. S. I. Manzur‑ul‑Haque (P. W. 8) proved F. I. R. No. 69 (Exh. P. X.) lodged at Police Station Narang, by Taj Din on 28th July 1956, alleging that his brother, Siraj Din, had been murdered by Muhammad Siddique, Barkat Ali, Muhammad Sharif and Muhammad Din, sons of Ali Akbar. Sardar Ali deceased was a prosecution witness in the said case. Sharif was acquitted. Barkat was sentenced to nine months' R. I. and Muhammad Siddiq and Muhammad Din were sentenced to seven years' R. I. each under section 304, P. P. C. He also stated that Ramzan son of Ranjhe Khan and Muhammad Hussain son of Dasondhi, were also witnesses in that case.
8. Muhammad Hussain P. W. 13 stated that one Nathu had mortgaged his land with Sardar Ali deceased and after the death of Nathu, father of Safdar appellant was entitled to that land and he wanted Sardar Ali deceased to release that land without payment but the deceased insisted on repayment of the mortgage debt. According to him, the appellants nursed a grudge against the deceased on that account as well.
9. The appellants admitted that Barkat and Muhammad Siddiq were brothers, that Safdar was their first cousin and that a sister of Ghafur's father was married to Safdar appellant. They also admitted that Barkat and Muhammad Siddiq appellants were prosecuted and convicted in the case relating to the murder of Siraj Din. They also admitted that Sardar Ali deceased appeared as a prosecution witness, although they asserted that his statement was not unfavourable to them. They denied that Nathu mortgaged any land in favour of the deceased or that they insisted on release of the said land without payment of money. As regards the alleged occurrence, they denied the same and urged that they had been falsely implicated out of enmity. They denied the alleged recoveries of drants, Kassi, and pistol. They denied that the drants or Kassi belonged to them. Barkat, Safdar and Ghafur appellants denied that they were arrested at Railway Station Khunda Ladheke.
10. The learned Additional Sessions Judge did not believe that the appellants had any grievance on the basis of the alleged mortgages of land. He, however, believed that the appellants made a grievance of Sardar Ali deceased being prosecution witness against them in the case relating to the murder of Siraj Din. Further, he believed the eye‑witnesses. Accordingly, he convicted and sentenced the appellants, as stated above.
11. Learned counsel for the appellants raised the following contentions :‑‑‑
(1) The dying declaration alleged to have been made by Sardar Ali deceased is of questionable authenticity. The nature and number of injuries suggested that he could not be conscious during the period of from 3‑30 p.m. to 4‑30 p.m. on 13‑3‑1966. The attesting witnesses made discrepant statements with regard to the pen and ink with which the statement/dying declaration was recorded. Similarly, the witnesses made discrepant statements regarding the time taken by the deceased in making the statement. The thumb‑impression appears to have been superimposed. One witness stated th tt the statement was recorded on two sheets, one sheet having been given to the doctor and the other having been taken away by M. H. C. Anwar Hussain P. W.
(2) Even if it be assumed that Sardar Ali deceased was fully conscious when he made the statement, his relatives continued to be present and could make suggestions to him. The statement (Exh. P. K.), therefore, should not have been accepted and acted upon.
(3) The alleged eye‑witnesses are related to the deceased and inimical to the appellants. Their statements should not have been accepted without corroboration from independent sources. No such corroboration is forthcoming in this case.
(4) The alleged recoveries are fake. The Kassi, which is alleged to have been recovered on 5‑4‑1966 (about twenty days after the occurrence) from a wheat field, could not, possibly, retain the blood‑stains. The drams are alleged to have been recovered from houses jointly occupied by the appellants and other persons. No respectable persons of the locality were associated with the investigation and Muhammad Ramzan, witness of recoveries is closely related to the deceased and is inimical to the appellants.
(5) The post‑mortem examination report prepared by Doctor Kayani was inadmissible in evidence because the Court did not record a finding to the effect that the attendance of Dr. Kayani could not be procured without an amount of delay or expense, which, under the circumstances of the case, appeared to the Court to be unreasonable, within the meaning of section 32 of the Evidence Act.
(6) Except for one injury on the head, the injuries, by and large, were not on any vital part of the body. The injuries did not indicate an intention to kill. Section 302, P. P. C. was not attracted. At the worst, the case could fall under section 307, P. P. C.
12. Exh. P. K. is the dying declaration. It was recorded by Mian Anwar Hussain (P. W. 9). It was attested by Dr. Abdur Razzaq (P. W. 1), Bashir Ahmad (P. W. 10) and Muhammad Hayat (P. W. 11). Dr. Abdur Razzaq certified in writing (Exh. P. J/1) that Sardar Ali injured was able to make a statement. The other attesting witnesses also stated that Sardar Ali was fully conscious at that time. The medico‑legal report (Exh. P. G.) recorded by Dr. Abdur Razzaq shows that Sardar Ali was admitted in the hospital/dispensary at 2‑30 p.m. on 13‑3‑1966. In view of the grave condition of the injured person, the doctor hurried to intimate to the S. H. O., Police Station, Narang, to make arrangements for getting his statement recorded. M. H. C. Anwar Hussain hurried to the civil dispensary and took two witnesses with himself. The two witnesses are men of status. Muhammad Hayat (P. W. 11) is a Zamindar and is also carrying on business in Mandi Narang. He is owner of a karkhana in the Mandi. He paid Rs. 1,000.00 by way of income‑tax. Similarly, Bashir Ahmad (P. W. 10) is a Zamindar. He also runs an arht shop and has a karkhana, at a distance of about two killas from that of Muhammad Hayat P. W. Both the witnesses stated that Sardar Ali was in his senses when he made the statement (Exh. P. K.). After the statement (Exh. P. K.), was concluded, Dr. Abdur Razzaq continued the medico‑legal examination. He noted as many as eleven injuries when Sardar Ali breathed his last. The doctor discontinued examination and made a note to that effect. We believe that the certificate (Exh. P. J./1), given by him must be correct. The learned Additional Sessions Judge was right in rejecting the contention that Sardar Ali was dead or unconscious at the time he is alleged to have made the statement (Exh. P. K.).
M. H. C. Anwar Hussain stated that he took about fifty minutes in completing Exh. P. K. which he concluded at 4‑30 p.m. He added :‑
"Sardar Ali made his statement very slowly. He did not complete any sentence, Sardar Ali would stop in between but did not take a long pause during his statement. During his statement he did not ask for water, medicine . . . . While making the statement Sardar Ali did not stop for urinating. I recorded the statement with copying pencil. The witnesses also signed with that very pencil. The thumb‑impression of Sardar Ali was obtained only once. It is not a fact that his thumb‑impression was obtained second time over the first thumb impression . . . . . . "
Nashir Ahmad (P. W. 10) stated as below :‑--
"While making the statement, Sardar Ali did not stop in between. The doctor was present during his statement. During the statement, the doctor did not give any medicine to Sardar Ali. He was not given any injection during that period. The statement was recorded with a pencil. I do not remember if any carbon copy of the statement (Exh. P. K.) was obtained or not. The thumb‑impression of the deceased was obtained with the ink of a pen or some other ink which I do not remember. I signed the statement with the same pencil with which the statement was written . . . . . ."
Muhammad Hayat (P. W. 11), however, stated as below :‑
"I did not remember how much time was taken in recording the statement (Exh. P. K.). While making the statement Sardar Ali did not stop but made a continuous statement . . . . During his statement Sardar Ali asked for water once or twice. The thumb‑impression of Sardar Ali was obtained with ink of the pad. The statement was recorded with a pen. I do not remember whether I signed the statement with the same pen or not. The Head Constable had prepared a carbon copy of the statement of Sardar Ali. The Moharrir had brought one copy to the Police Station and had given one to the doctor. The carbon copy also bore my signatures and that of Sardar Ali."
The fact remains that the statement recorded is Exh. P. K. and no copy or counterpart thereof was prepared‑at least none is placed on the record. The statement of Muhammad Hayat P. W. to that extent is incorrect and is to be ignored. A look at Exh. P. K. would show that the body of the statement was recorded with copying pencil and the thumb‑impression of Sardar Ali, affixed thereon, was taken by using ink pad. In view of the number and nature of the injuries, it will not be surprising if Sardar Ali made the statement in a halting manner. But it is incorrect to suggest or contend that Exh. P. K., in its entirety, did not represent the statement of Sardar Ali‑either because incomplete sentences were completed by Anwar Hussain or that Anwar Hussain incorporated replies of anybody, else. Anwar Hussain stated that he took nearly fifty minutes in completing the statement Exh. P. K. and this rings true. It is true that the thumb‑impression is not a rolled one. It also appears that the thumb‑impression was affixed in two jerks. It is nobody's case that the thumb‑impression on Exh. P. K. was of someone other than Sardar Ali. The relatives of Sardar Ali, who brought him to the dispensary, may be present in the dispensary. But there is no evidence to suggest that they made any suggestions to the deceased or that they gave any informa tion to Anwar Hussain. Accordingly, we conclude that Exh. P. K. is a genuine dying declaration made by the deceased.
13. It may be helpful to understand the state of relations amongst the appellants, the deceased and the witnesses.
(a) Admittedly the appellants are closely related amongst themselves.
(b) Sardar Ali (P. W. 3) stated that Sardar Ali deceased was mother's sister's son of Siraj Din, mentioned in F. I. R. (Exh. P. X.). Ramzan son of Ranjha (P. W. 14) is husband of a sister of the said Siraj Din. Muhammad Hussain (P. W. 13) is not shown to be related to Sardar Ali deceased. Certain suggestions made to him in cross‑examination to establish relationship were repelled by him. Barkat (P. W. 12) is a Mashki by caste. He is not related to Sardar Ali deceased or Muhammad Hussain and Ramzan, who are Rajputs by caste.
(c) (i) For the murder of Siraj Din, Muhammad Siddique, Barkat and their two brothers, Sharif and Muhammad Din, were prosecuted. Sardar Ali deceased, Muhammad Hussain and Ramzan appear as prosecution witnesses in that case. Eventually, Barkat and Muhammad Siddique were convicted. Muhammad Din and Siddique were sentenced to seven years' R. I. In another case under section 325, P. P. C. against Barkat, Siddique and others, Muhammad Hussain and Sardar Ali appeared as witnesses. Apparently, Muhammad Hussain and Sardar Ali P. Ws. are hostile to the appellants.
(ii) Barkat P. W. stated as follows :‑
"There were big parties in our village. One party is that of Mashkies and the two parties are those of Rajputs. These three parties are opposed to each other. Sardar Ali deceased was the leader of the village. He was a leader of our party also."
He may be interested in the deceased but is not shown hostile to the appellants.
14. The ocular evidence is furnished by Sardar Ali, Muhammad Hussain and Barkat P. Ws. They stated that in their view the four appellants assaulted Sardar Ali deceased and caused all the injuries to him and removed his pistol.
Learned counsel for the appellants contended that the eye witnesses being related and hostile, could not be relied upon. Had Muhammad Hussain and Sardar Ali P. Ws. been present along with Sardar Ali deceased, the appellants, who, according to their own showing, bore equal animosity towards all of them, must not have singled out Sardar Ali deceased and would have assaulted Sardar Ali and Muhammad Hussain P. Ws. as well. According to him, absence of injuries on the persons of Sardar Ali and Muhammad Hussain P. Ws. would indicate that they were not present at the time of the alleged occurrence and were false witnesses. These witnesses explained that they had been warned by the assailants to keep away and that, accordingly, they receded by a few karams and, standing there, witnessed the occurrence. Muhammad Hussain P. W. stated that he was married to a daughter of Jalal, a first cousin of Ali Bakhsh, whose daughter is married to the father of Safdar accused. This statement remained unchallenged in cross‑examination. This relationship may furnish the reason why the appellants treated Sardar Ali deceased as their enemy No. 1 in preference to Muhammad Hussain P. W. Sardar Ali P. W. stated that three years before his statement he appeared as a witness in the case against Safdar appellant and certain other persons under section 325, P. P. C. There is nothing to indicate the gravity of his statement against Safdar appellant. No evidence was led in defence to bring out this plea. It was urged that these witnesses did not take any action to rescue the deceased. The explanation was that they were empty handed, whereas the assailants were armed with deadly weapons and had warned them to keep away, else they would also be dealt with likewise.
It was urged that Muhammad Hussain had his lands far away from the place of occurrence and that he was only a wajtakar witness. Muhammad Hussain stated that his well was at a distance of seven killas from the place of occurrence. The Patwari was examined as P. W. 7 but no effort was made to show that the said statement of Muhammad Hussain was incorrect. Muhammad Hussain, therefore, could be a natural witness The distance between village Bhago Dyal and Jam Gill is only three squares. The residents of either village can naturally be near about the place of occurrence, which lies in between the two villages. While one may be sceptic in accepting and acting upon the statements of Sardar Ali and Muhammad Hussain P. Ws. there is little justification to discard the evidence of Barkat P. W. We are, therefore, satisfied that the ocular evidence goes a long way to corroborate the dying declaration.
15. Learned counsel for the appellants questioned the authenticity of the recovery of the drants and kassi. The recoveries were attested by Muhammad Ramzan and Muhammad Ali. Muhammad Ali was not produced. Muhammad Ramzan P. W. is closely related to the deceased. No respectable witnesses of the locality were associated (vide section 103, Cr. P. C.). A. S. I. Bashir Hussain P. W. stated that Muhammad Siddique appellant had informed him that he had thrown his kassi in a wheat crop, at a distance of about "one yard" towards west of the place of occurrence. Learned counsel for the appellants pointed out that had this been so, the kassi would have been recovered by the Investigating Officer on 13‑3‑1966. The reference to Exh. P, F., would, however, show that the kassi was recovered from a place 120 yards towards west of the place of occurrence. Learned counsel further contended that the appellants had full opportunity to wash off any blood‑stains and that the recovery of drants from their custody three days after the occurrence, was doubtful indeed. It is in evidence that the house wherefrom the recoveries were made were also in occupation of others (vide P. W. 14). Since the recoveries of drants and kassi are not supported by independent and reliable evidence, we eliminate this piece of the evidence from consideration.
16. Dr. Nisar Ahmad Kayani left for Saudi Arabia. Dr. Bashir Ahmad stated that Dr. Kayani was on deputation in Saudi Arabia and was not expected to return in near future. Under the circumstances, the Court permitted Dr. Bashir Ahmad to formally prove the post‑mortem examination report furnished by Dr. Kayani. Learned counsel for the appellants contended that the learned Additional Sessions Judge did not, in so many words, record the conclusion that Dr. Kayani's attendance could not be procured without an amount of delay or expense which, under the circumstances of the case, appeared to be unreasonable in the absence of such conclusion, the evidence of Dr. Bashir Ahmad was inadmissible. The Court did permit Dr. Bashir Ahmad to prove the post‑mortem report recorded by Dr. Kayani. In doing so, the Court did take into consideration the statement that Dr. Kayani was on deputation in Saudi Arabia and was not expected to return in near future. We are satisfied that the action of the Additional Sessions Judge was unquestionable. As B held in the case reported as State v. Sharif (P L D 1957 Lah. 669) and in view of the provisions of sections 32 and 45 of the Evidence Act, Dr. Bashir Ahmad was competent to formally prove the medico‑legal report recorded by Dr. Kayani. The contention is without force.
17. The following three motives were convassed, namely :‑
(a) The deceased was a prosecution witness in the case relating to the murder of Siraj Din.
(b) The proceedings under section 107/151, Cr. P. C. against the appellants were taken at his instance.
(c) The deceased refused to release the land mortgaged by Nathu and insisted on repayment of mortgage debt.
There is no satisfactory evidence regarding (b) and (c) above. So far as Siraj Din's murder was concerned, Sarder Ali did appear as a prosecution witness. As that case ended in convic tion, Barkat and Muhammad Siddique appellants may have some grievance against him. Siraj Din was murdered in 1956 and Muhammad Siddique and Muhammad Din received a sentence of seven years' R. I. under section 304, P. P. C. Apparently, the score stood settled. It is, however, reasonable to accept that there existed animosity between the deceased on one side and Muhammad Siddique and Barkat appellants on the other.
18. The Investigating Officer, Muhammad Amin, A. S. I. reached the spot of occurrence the same day after sunset. He found Sardar Ali, Muhammad Hussain and Barkat P. Ws. present at the spot. He collected blood‑stained earth from a place on the path way connecting village Bhago Dyal and Jam Gill, at a distance of 15/20 karams from the bridge on Chakian Minor. The same day the Investigating Officer recovered the cover of the pistol, lying close to the place of occurrence. Nathe Khan, Chairman of Narowal Union Council, stated that in his pre sence Barkat appellant was apprehended by A. S. I. Muhammad Amin and that from his dub was recovered pistol (P. 6), which was taken into possession vide memo. Exh. P. M. He attested the memo. Nathe Khan is not shown to be interested, in any way, in the deceased or hostile to the appellants. Safdar Ali (P. W. 15), brother of the deceased, identified the pistol cover and the pistol as belonging to the deceased. Sardar Ali deceased in his dying declaration specifically mentioned that two of the assailants had removed his licensed pistol. The recovery of the pistol from the possession of Barkat appellant corroborates the dying declaration and the ocular evidence.
19. The medical evidence also supported the statements of Sardar Ali deceased and other eye‑witnesses.
20. The evidence regarding recovery of the pistol and the" medical evidence corroborate the ocular evidence. Barkat P. W. is almost a disinterested witness ; he is not related to the deceased and is not shown to be hostile to the appellants. All this evidence corroborates the dying declaration (Exh. P. K.). We believe that Exh. P. K. is both genuine and true, and a conviction may be founded on it, vide Zabta Khan v. State (P L D 1963 Pesh, 66).
21. Sardar Ali deceased bore 24 injuries. Four out of them, Nos. 7, 22, 23 and 24, were abrasions. The rest were sharp edged injuries. Injury No. 1, 3" x 1/2", cut the skull‑bone. Other injuries were on the arms, thighs and legs, below the knees. Dr. Kayani opined that injuries Nos. 1, 11 and 12 could be fatal individually. Injury No. 11, was an incised wound, near left ankle‑joint. Injury No. 12 was an incised wound on the left leg, 3 " above injury No. 11. The doctor did not specify how these two injuries could individually prove fatal. No doubt injury No. 1 on the head could easily prove fatal. Thus, except for injury No. 1, the injuries were by and large on non‑vital parts of the body.
22. Learned counsel for the appellants contended that the appellants had no serious grievance and, therefore, could not have possibly intended to murder Sardar Ali. The appellant mercilessly caused a large number of injuries, with sharp‑edged weapons, to Sardar Ali, who though armed with a pistol, had little opportunity to use the same in defence. The injuries resulted in his death within five hours. Under the circumstances, it shall be reasonable to conclude that they caused the injuries with the intention to cause his death. In any case, they shall be credited with the knowledge that such injuries were likely to cause death. Falak Sher v. State (P L D 1962 Lah. 728) followed. We are satisfied that it is a case falling under section 302, P. P. C. not under, section 304 or 307, P. P. C.
23. The conviction as under section 394/34, P. P. C. is well founded and is affirmed.
24. The eye‑witnesses and the deceased were not in a position to specify which injury out of injuries Nos. 1, 11 and 12, had been caused by which of the appellants. Since it is not possible to ascribe the fatal injury to any one particular appellant or appellants, lesser penalty may be inflicted on all of them. Sardar and Abdul Ghafur appellants were sentenced to transpor tation for life under section 302/34, P. P. C. Their sentence is appropriate so their appeal is dismissed. Barkat and Muhammad Siddique appellants were ordered to suffer death. Their appeal is accepted to this extent that their sentence is reduced from death to transportation for life. The sentence of fine is maintained. The substantive sentences shall run concurrently.
25. The sentence of death in respect of Barkat and Muhammad Siddique is not confirmed.
Sentence reduced.
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