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Criminal Acquittal Appeal No. 123 8 Criminal Revision No.65 of 1982, decided on 9th October, 1983.

---S. 32--Penal Code (XLV of 1860), 5.302--Dying declaration, validity of--Dying declaration alone, held, as a rule could not be made basis of conviction for a charge capital offence.--[Dying declaration- Conviction)'.

Muhammad Lateef and another v. Muhammad and 9 others P L D 197;0 S C 409 and Tawaib Khan and another v. State P L D 1970 S C 1 1 ,ref.

---S. 302--One piece of tainted evidence, held, could not corroborate another piece of tainted evidence.--[Evidence).

---S. 417 read with Penal Code (XLV of 1860), S. 302--Murder--Appeal against acquittal--Both ocular testimony and dying declaration tainted- Finding of acquittal based on appreciation of evidence and nothing perverse or fanciful--Interference with order of acquittal declined, in circum stances.--[Appeal against acquittal].

Shoe Swarup and others v. King Emperor A R 1934 P C 227(2); Abdul Majid v. Superintendent and Remembrancer of Legal Affairs P L t; 1964 S C 422; Khurshid Ahmad v. Kabool Ahmad and others P L D 196u Kar. 356; Muhammad Fateh v. Bago and others P L D 1960 S C 286 and Bashir Ahmad v. Muhammad Azam P L D 1969 S C 469 ref.

---Ss. 302 & 100 read with S. 300, Exception 4--Private defence, right of--Plea of self-defence, held, not available to party to a fight nor question as to which of parties aggressor, relevant--Each of participants, held further, responsible for individual role attributed to him.--[Private dance, right of].

Ali Bepari v. Nibaran Molla and others P L D 1962 S C 502 and Abdur Rehman v. Gadai Khan and 3 oUsers 1972 S C M R 676 ref.

Murtaza Hussain for the State.

Muhammad Hayat Junejo for Respondents.

Azizullah Shaikh for Appellant (in Cr. Revision No. 65 of 1982)

.---The above criminal acquittal appeal and the criminal revision have been filed against the same judgment of learned Third Additional Sessions Judge, Karachi, dated 23rd December, 1981 , whereby the learned Judge had acquitted respondents Muhammad Khan and Manzoor of offences under section 302/307/34 P.P.C. Against the acquittal of Muhammad Khan only appeal has been filed on behalf of the State which is Appeal No. 132 of 1982. Private complainant Lai Khan has, however, filed revision application challenging acquittal of both the respondents namely, Muhammad Khan and Manzoor. The Appeal and Revision have been heard together and are being decided by this judgment.

2. The facts of the case as revealed by the F.I.R. and the prosecution witnesses are as under: --

P.W. Saheb Khan alongwith his nephew Khan Bahadur deceased and his relative Muhammad Khan son of Zarif Khan (he should be dis tinguished from accused Muhammad Khan who is son of Noor Khan) used to reside in Dhobi-Ghat. The father of accused Muhammad Khan son of Noor Khan (for the sake of convenience and avoiding confusion of names he shall be referred to as Muhammad Khan Noor) had a factory of drums on Badshahi Road. On 9th June, 1972 Saheb Khan, Bahadur Khan, P.W. Muhammad Khan son of Zarif (who shall be referred to hereinafter as Muhammad Khan Zarif) left Khamosh Colony for Dhobi-Ghat in the morning. At about 11-00 a.m. they reached near the Drums Factory of Noor Khan in Dhobi-Ghat. It is alleged that Muhammad Khan Noor and Manzoor respondents came out from the factory, armed with revolvers and declared that they shall not spare Khan Bahadur. Both the respondents are alleged to have fired at Khan Bahadur from a distance of 25 paces but the fires missed. Resppndent Manzoor then instigated respondent Muhammad Khan Noor to fire at Khan Bahadur from a close range. Muhammad Khan Noor fired another shot at Khan Bahadur from a distance of 4-5 paces which hit Khan Bahadur on his chest. Both the respondents then ran away. In the meantime P.Ws. Lai Khan and Shahmir who were relations of P.Ws. Saheb Khan and Muhammad Khan Zarif also arrived on hearing the reports of revolver shots. Saheb Khan removed Khan Bahadur to Civil Hospital. P.W. Lai Khan and Shahmir also followed them and reached Civil Hospital where Khan Bahadur was lying unconscious.

3. This incident had taken place within the jurisdiction of Kalakot Police Station where Mr. Anisur Rehman was S.H.O. At 12-30 p.m. he received telephonic message from Civil Hospital, Karachi that Khan Bahadur had been received in an injured condition. He entered this message in the Roznamcha and directed Mr. Shamim Ahmad Siddique S.I.P. to proceed to Civil-Hospital. Mr. Shamim Ahmad Siddiqui Sub-Inspector proceeded to the Civil Hospital alongwith A.S.1. Abbas where they found Dr. Moosa attending to injured Khan Bahadur, whose condition was very serious. Khan Bahadur was, however, in a position to speak. Mr. Shamim Ahmad recorded statement of Khan Bahadur which has been treated as F,I.R. and also dying declaration and, therefore, needs to be reproduced ad verbatim. It is as follows: --

I had an old enmity with Muhammad Khan alias Kaloo." Today at about 11-00 o'clock (paper torn) I was going from Dhobi Chat Chowk when Muhammad Khan alias 'Kaloo' son of Noor Khan fired four revolver shots at me, out of which one bullet hit on the left side of my chest. Manzoor too was with Muhammad Khan, who called at Muhammad Khan saying that it was the chance today fire a shot at him. I had fallen down unconscious and have now regained consciousness in the hospital. Statement heard and found correct."

Mr. Shamim Ahmad Siddiqui signed the statement and also obtained signature of Dr. Moosa. Khan Bahadur succumbed to injuries in the Civil Hospital on the next day i.e. 10th June, 1972, but no post-mortem examination could be held because Lai Khan and other P.Ws. forcibly took away the dead body of Khan Bahadur from the mortuary of Civil Hospital.

4. Mr. Shamim Ahmad Siddiqui sent the statement of Khan Bahadur to Kalakot Police Station for being recorded as F.I.R. in the relevant register maintained under section 154, Cr.P.C. P.Ws. Muhammad Khan Zarif and Saheb Khan were present in the Hospital when the S.I.P. (Mr. Shamim Ahmad Siddiqui) had recorded the statement of deceased Khan Bahadur. Both the P.Ws, had injuries on their persons. The S.H.O. referred them to the medical Officer for treatment and certificate. Mr. Shamim then returned to the Police Station where he found accused Muhammad Khan Noor who had gone there to lodge counter-report against the P.Ws. The S.H.O. arrested him and also recorded report of respondent Muhammad Khan Noor under section 324, P.P.C. He was also referred to the Medical Officer for treatment and certificate.

5. Mr. Shamim then proceeded to the scene of offence which was pointed out by Saheb Khan, Muhammad Khan Zarif and Shahmir. It was situated near Dhobi-Ghat. No marks of any fight or blood were observed at the Vardat. Mashirnama was prepared which was signed by Muhammad Khan Zarif and Shahmir as Mashirs. The S.I.P. then recorded the state ments of Saheb Khan, Muhammad Khan Zarif, Shahmir and Lai Khan. On the next day i.e. 10)h June 1972 he had gone to the hospital on receiving information about the death of Khan Bahadur and held inquest on the dead body in presence of Mashirs Muhammad Khan Zarif and Jehangir Khan. From the statement of Mr. Shamim Ahmad Siddiqui (Exh. 17) it does not transpire that he wrote any letter to the Medical Officer concerned to hold post-mortem examination on the dead body of Khan Bahadur. Mr. Shamim Ahmed handed over the papers to Mr. Anisur Rehman S.H.O. Kalakot for further investigation. The latter did not make any investigation except to write a letter to the City Deputy Collector for getting a sketch prepared. He had received blood-stained clothes of the deceased which were sent to the Chemical Examiner for examination and report. He had also received post-mortem report in respect of the deceased. It may be stated that the so-called post-mortem report is only a certificate issued bry Dr. Moosa, who could not be examined because he had left service and gone abroad before the commencement of the trial. The certificate issued by Dr. Moosa had been produced by a Clerk of Civil Hospital (Exh. 33) which only contains particulars of injuries on the person of Khan Bahadur. He had noted following injuries on the person of Khan Bahadur: --

"Assault by fire-arm/prychto 0/B PL. Restless. Vomtting B.P. 120/90 mls pulse 120 mls. Oval I/w left chest from 2" below nipple Dia J" margins invested charring with corresponding hole on shirt and Banyan."

After usual investigation the case was sent up before a Magistrate for commitment proceedings, who after holding the inquiry, committed the respondents to the Court of Sessions for trial in the year 1975. The motive for the murder is said to .be old enmity between the deceased and P.Ws. Muhammad Khan Zarif, Sahib Khan, Shahmir Khan and Lal Khan on the one side and the respondents on the other side. It is also alleged that respondent Muhammad Khan Noor suspected Khan Bahadur to be on illicit intimacy with his wife.

6. Both the respondents Nos. 1 and 2 were charged for having committed murder of Khan Bahadur in furtherance of their common intention, an offence punishable under section 302/34, P.P.C. They were further charged with attempt to commit murder of Muhammad Khan Zarif in furtherance of their common intention, an offence punishable under section 307/34, P.P.C. Both the respondents Muhammad Khan Noor and Manzoor pleaded not guilty.

7. In their statements under section 342, Cr.P.C. the respondent have denied having committed the murder by firing with revolvers at Khan Bahadur or having caused injuries by revolver shot to Muhammad Khan Zarif. Muhammad Khan Noor respondent also filed statement in writing containing in details the particulars of his defence, the relevant part of which is as under: --

"4. That on 9th June, 1972 at about 11 or 11-15 a.m. I was passing through Dhobi-Ghat, near Niazi Colony, Karachi. Khan Bahadur alongwith his father Lal Khan, Muhammad Khan son of Zarif Khan and Shahmir Khan waylaid me. Muhammad Khan and Shahmir Khan were armed with knives and Lal Khan and Khan Bahadur with Dandas. Then all of a sudden they attacked me. Muhammad Khan inflicted injuries on his hand and Shahmir on his head. Khan Bahadur and Lal Khan gave Lathi blows to me with the result I fell down. As Khan Bahadur was proceeding towards me to give further blows, 1 heard a shot of firing as a result Khan -Bahadur was hit and he fell down.

5. That having seen Khan Bahadur injured, Lal Khan, Muhammad Khan and Shahmir Khan were upset and I got the opportunity to slip away from there and reached the House of Gulrang Khan where I found Ali Khan, Yaqbob, Dost Muhammad about to take their meals. They being my relatives, having tied down my head injury with a piece of cloth, they took me to Kalakot Police Station where I met the then Incharge Anisur Rehman. As the said S.H.O. was enquiring from me, Afzal Khan, Lal Khan, Saheb Khan, Sher Samad and Shahmir Khan appeared on the scene and having seen me talking with the said S.H.O. they rushed towards me. I was saved by Ali Khan and Gulrang Khan who received injuries at the hands of the above-said persons and Afzal Khan died as a result of injury sustained by him with his own knife."

Respondent Manzoor is a relation of Muhammad Khan Noor respondent and has adopted the same statement.

8. In support of the prosecution case, there is ocular testimony of P.W. Saheb Khan (Exh. 6), Lai Khan (Exh. 8) and Muhammad Khan Zarif (Exh. 11) Shahmir Khan who is also alleged to be an eye-witness according to the prosecution case, could not be examined because he died before the commencement of the trial. Mr. Shamim Ahmed (Exh. 17) and Mr. Anisur Rehman (Exh. 24) are the Investigating Officers. Mr. Shamim Ahmed S.I.P. has also produced the dying declaration of Khan Bahadur as Exh. 18 which was later on incorporated in the relevant register as F.I.R. and has been produced as Exh. 20. Mr. Shamim Ahmad Siddiqui has also produced a certificate issued by Dr. Shahida in respect of cause of death of Khan Bahadur. It may be stated that Dr. Shahida also could not be examined because she has left service and her whereabouts were not known. Her certificate containing the cause of death of Khan Bahadur has been produced as Exh. 20/B which simply states that Khan Bahadur died due to shock and severe haemorrhage septicaemia. So far as the injuries on the person of P.W. Muhammad Khan Zarif are concerned, he was examined by Dr. Abdul Sattar (Exh. 21 ). According to him, there was no fire-arm injury on the person of Muhammad Khan Zarif as claimed by him. He had only two contusions on his person as under:--

(1) A contusion on the left shoulder measuring 2" x 1".

(2) A contusion on the skull measuring 2" x 1" with no body injury."

Both the injuries were simple and fresh.

The learned trial Judge discussed the evidence of the so-called eye-witnesses Saheb Khan, Muhammad Khan Zarif and Lal Khan and disbelieved them on the ground that they were interested witnesses and that their testimony was inconsistent with the medical evidence. All the three witnesses have deposed that Muhammad Khan Zarif had received injury by revolver shot fired by respondent Manzoor. But Dr. Abdul Sattar has deposed that there was no fire-arm injury on the person of Muhammad Khan Zarif. He further held that there were contradictions in the evidence of the three eye-witnesses and that they were inimical to the accused persons as admitted by deceased Khan Bahadur in his dying declaration.

I5. The dying declaration alone, as a rule of prudence, cannot made basis of conviction for a charge of capital offence. About the evidentiary value of dying declaration, Sajjad Ahmad Jan. J. observed as under in the case of Tawaib Khan and another v. State P L D 1970 S C 13:--

"The dying declaration of the deceased have a degree of sanctity under the law, being the statements of a dying man, on the belief that he being placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, he would not tell a lie and implicate innocent persons on false charges. But, in the matter of the administration of criminal justice, taking in view the present state of our society, the assessment of evidence, whether it is'the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effect, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In this country, the habit, unfortunately, is quite common, now "judicially recognized", that people do add innocent persons alonowith the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age-old habits and deep-rooted rancours and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty It is for this reason that a close scrutiny of the dying declaration like the statements of interested witnesses, becomes absolutely necessary."

The above observations are fully attracted to the facts of the present case.

16. It cannot be argued, and has not been, that the ocular testimony amounts to corroboration of the dying declaration or vice versa. Both categories of evidence in this case are tainted, and it is well-established law that one piece of tainted evidence cannot corroborate another piece of tainted evidence.

17. We are, therefore, of the view that the guilt of the respondents has not been proved beyond a reasonable doubt, as found by the trial Judge. This finding is based by the trial Court on appreciation of evidence, which cannot be said to be perverse, or fanciful. This being the case, this Court will be reluctant to interfere with the order of acquittal in view of the law laid down by the Privy Council in well-known case of Sheo Swarup and others v. King Emperor A I R 1934 P C 227(2) in the following words: --

"Sections 417, 418 and 428 of the Code give to the High Court full powers to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusion upon fact, the High Court should and will always give proper weight and consideration to such matters (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted his trial, (3) the right of the accused to the benefit on any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

The above law has been consistently followed by the Courts in our country till this day. See Abdul Majid v. Superintendent and Remernuerancer of Legal Affairs P L D 1964 S C 422, Khurshid Ahmad v. Kabool Ahmad and others P L D 1964 Kar. 356,-Muhammad Fateh v. Bago and others P L D 1960 S C 286 and Bashir Ahmad v. Muhammad Azam P L D 1969 S C 469. 18. While agreeing with the learned trial Judge that the respondents were entitled to benefit of doubt, we do not agree with the reasons given by him to arrive at this finding. After discussing the orosecution evidence, by some strange logic, he has, all of a sudden arrived at the finding that there was a free fight between the parties and that it was not known which of the parties was the aggressor, hence the respondents D were entitled to benefit of doubt. It appears that the learned trial Judge did not appreciate the implications of 'free fights'. In case of free fight the plea of self-defence is not available to a party to the fight, nor the question as to which of the parties is the aggressor, would tie relevant. Each one of the participants in such fight shall be responsible for the individual role attributed to him Syed Ali Bepari v. Nibaran Mollah and others P L D 1962 S C 502 and Abdur Rehman v. Gadai Khan and 3 others 1972 S C M R 676.

From the evidence discussed above, it cannot be said by any stretch of imagination that there was mutual fight between the parties. Conse quently both the appeal and the revision against the aquittal of the respondents, are dismissed.

S.G.D. Appeal dismissed.

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