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Criminal Appeal No. 981 of 1975, decided on 28th September, 1980.

-----S. 32-Dying declaration, validity of-Nothing on record to show injured at time of recording dying declaration being in a fit condition to make a statement-Injured brought to hospital in a critical condition having no pulse and taken straight to operation theatre-Dying declaration also having a few blank-All such factors taken together, held, create doubt about recording of dying declaration and its genuineness.-[Dying declaration].

----- S. 302-[Murder-case] ---- Evidence, appreciation of --- Dying declaration found doubtful while ocular evidence in conflict with medical evidence-Recovery of crime weapon, held, per se not sufficient to convict accused on capital charge-Interference with order of acquittal declined, in circumstances.-[Appeal against acquittal-Evidence].

Malik Abdul Hamid for A.-G. for the State.

C. M. Latif Rawn for Respondent.

Date of hearing: 11^thJune, 1980.

Mansab Khan son of Muzaffar Khan, Awan, resident of Saidan, was tried for the murder of Ghularn Muhammad, a Supervisor in Lawrencepur Woollen and Textile Mills, by the Additional Sessions Judge, Campbellpur. The trial Judge by his judgment dated 22nd April 1975 acquitted the accused. The State felt aggrieved and filed Criminal Appeal No. 981 of 1975. Mehboob Ahmad son of the deceased filed Criminal Revision No. 969 of 1975. Notice was issued in both the matters and both matters shall be decided by this judgment.

2. The prosecution case is that on 11th August 1973, at about 2-30 p.m., Mansab Khan came to the house of Ghulam Muhammad and called him. He came out, stood at the door, the appellant attacked him with the chhuri and inflicted a blow in his abdomen, Munawar Hussain and Mahmooda Begum, son and daughter, respectively of Ghulam Muhammad came out. The respondent left the chhuri at the spot and ran away.

In addition to the aforesaid two persons, the occurrence was seen by Mat Baba. On the hue and cry of Mahmooda Begum, her mother Mst. Sardaran Begum also came to the spot, Mahmooda Begum went to the Mills, informed her brothers Maqsood and Mehboob. A wagon from the mills came. The injured was put into it and taken to Civil Hospital, Campbellpur.

3. The motive for this attack was that Ghulam Muhammad was a Supervisor in the Mills. The respondent was a labourer. He was discharged by the Superintendent. The respondent suspected that Ghulam Muhammad had a hand in his removal.

4. Investigation was conducted by Zafar Ahmad Sub-Inspector who after forwarding the statement of Mst. Mehmooda Begum which was recorded near the Octroi Post, left for Civil Hospital' Campbellpur. There he recorded the statements of the witnesses, took into possession blood. stained chhuri P. 1 which was produced by Munawar Hussain P. W. He also took into possession blood-stained earth from the spot. The appellant was arrested on 12th August 1973.

5. The prosecution evidence consists of the statements of' Mehmooda Begum, her brother Munawar Hussain; dying declaration of the deceased ; recovery of blood-stained chhuri and the medical evidence.

6. The respondent denied the charge of murder. He said that the prosecution witnesses had falsely deposed on account of non-identification of the assistant at the instance of his enemies. He further said that the prosecution witnesses did not know him nor was he put to identification parade.

When questioned 'Will you produce any evidence in your defence', the respondent said "No. The Court should summon the Record Keeper of the Mills for producing my record."

7. Learned counsel appearing for the State argued that the ocular evidence of Mehmooda Begum and her brother Munawar Hussain coupled with the dying declaration of the deceased, were sufficient in law to convict the respondent for the murder. He submitted that the trial Court erred in rejecting the prosecution evidence, specially the one referred to above. According to him the ocular evidence and the dying declaration found support from the recovery of blood-stained chhuri at the spot and the medical evidence.

Learned counsel laid great stress on fact that the two eye-witnesses were not in any way inimical to the respondent. They had no reason to falsely implicate him. It was a broad daylight murder. There was motive as well for killing the deceased.

It was further submitted that in view of the aforesaid evidence the judgment of the trial Court resulted in miscarriage of justice.

The same submissions were made by the learned counsel appearing for the complainant, the only exception being that he was more emphatic.

8. We have also heard the learned counsel for the respondent. He supported the judgment of the trial Court and it was submitted that it called for no interference. The reason for that was that the trial Judge gave cogent reasons in support of the conclusion arrived at by him. According to the learned counsel there was no error, either of law or of fact which resulted in miscarriage of justice.

9. No doubt there are two eye-witnesses and we are not prepared to discard their evidence on the ground that they were daughter and son of the deceased. However, the important point in this sequence would be whether there is any corroboration from the rest of the evidence. For that matter, we would like to deal with the dying declaration first in order to find out whether it corroborates the ocular version. The dying declaration was recorded at 4-15 p.m. In this the deceased only mentioned the name of his wife. The occurrence took place at 2-30 p.m. The deceased was admitted in the Civil Hospital at 3-45 p.m. His dying declaration was recorded at 4-15 p.m. There is evidence to show that an enquiry was made for the second time whether the injured was in a fit condition so that his statement could be recorded. This throws some doubt about the recording of the dying declaration.

There is yet another important factor and that is that the doctor in his evidence admitted that when the injured was brought in the hospital his condition was critical. His blood pressure could not be read. He had no pulse. There are a few blanks in the dying declaration. It is also in evidence that the injured was taken straight to the Operation Theatre. All these factors taken together create doubt about the recording of the dying declaration and its genuineness.

There is another point in this connection and that is that there is nothing on the record to show that when the dying declaration was recorded the injured was in a fit condition to make a statement.

When the counsel for the State and the complainant were confronted with this position they tried to meet this by submitting that the police officer who recorded Exh. P. A. A. was not aware of the fact that the dying declaration had already been recorded. Therefore, there was nothing unnatural to have enquired for the second time about the condition of the injured.

With regard to the fitness of the injured, the explanation given by both the counsel was that as the dying declaration was recorded by the doctor, there was no need to give a formal certificate of fitness.

About the blanks, it was submitted by the learned counsel that these, as a matter of fact, prove the genuineness of the dying declaration.

10. We have considered the submissions. There is no force in them. On the other hand, we are of the view that these points go a long way to create doubt about the genuineness of the dying declaration.

This leaves us to deal with the evidence of the two eyewitnesses. Both of them deposed that it was in their presence that the respondent gave one injury to the deceased. The doctor who examined the injured noticed (1) a stab wound 5 x 1" cavity deep, on the left hypochendrum and (2) a stab wound 1 x " cavity deep, on the right iliac fosa.

The prosecution has not been able to explain the second injury. Had it been some scratch, bruise or even abrasion, it could have been brushed aside. The second injury was also of serious type. It is; therefore, obvious that there is direct conflict between the ocular evidence and the medical evidence with regard to the number of injuries. In such circumstances no reliance could be placed on the ocular testimony.

11. So far as the motive is concerned, Sher Muhammad, Senior Clerk of Lawrencepur Woollen Mills was called as C. W. 1. There is nothing in his evidence to show that the deceased had done anything in the removal of the respondent. On the other hand, it-was one Sultan Shah Jobber whom the respondent suspected to be responsible for his removal. As a matter of fact, Sultan Shah was at one stage manhandled by the respondent.

12. This leaves us with the evidence pertaining to recovery. Even if this evidence is accepted, it per se will not be sufficient in law to convict the respondent of the murder charge.

13. In view of the above, we are of the view that the respondent was rightly acquitted. The prosecution has not been able to prove its case beyond reasonable doubt. Therefore, the appeal and the revision petition are dismissed.

Appeal dismissed

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