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Criminal Appeal No. 160 of 1981, heard op 21st June, 1983,
‑‑ S. 302/34‑‑Murder‑Weapon of offence not satisfactorily proved by prosecution‑Dying declaration per se not enough corroboration in circumstances Admission by Investigating Officer in cross- examination that accused also received injury and his subsequent change of statement of Investigating Officer held, adversely reflects on investigation of case, injury on accused having been proved by defence‑Solitary eye‑witness not giving true account of occur rence. Criminal litigation pending between prosecution witness and accused, making statement of such witness unreliable‑Accused' given benefit of doubt and acquitted.‑(Benefit of doubt).
Inayatullah Cheema for Appellant.
Ch. Muhammad Yamin for A.G. for the State.
Date of hearing: 21st June, 1983.
Muhammad Afzal (60) and his son Noor Muhammad (16) were tried for the murder of Muhammad Mansab Khan. On 17th January, 1981. Additional Sessions Judge Sargodha, convicted both under section 302/341 P. P. C. and sentenced each to life imprisonment with a fine of Rs. 5,000 in default each to undergo three months' R. I. further. Fine if realized was ordered to be paid as compensation to the heirs of the deceased.
2. On 27th September, 1979 at 7‑15 p. m. Mansab Khan was irrigat ing his fields in 'village Heroo Dakhli. His turn of water was till 11 p. m: At about 10 p.m., Afzal and Noor Muhammad diverted the water towards their fields. Mansab All (deceased) tried to divert the water have to his field. Muhammad Afzal armed with a spear and Noor Muhammad with a vahola attacked him. Muhammad Afzal gave a spear blow on the left side of his abdomen. Mansab Ali (deceased) fell down. Thereafter, Noor Muhammad inflicted vahola blow on his buttock. P. W. Muhammad lqbal saw the occurrence: He raised an alarm. The accused went away with their weapons. He then carried Mansab Khan to the Civil Hospital, Khushab and reached there at 2‑15 p. m. where Mansab was examined by P'. W. 1 Dr. Muhammad Riaz, Medical Officer Civil Hospital, Khushab on 28th September, 1979 at 3‑15 p. m. The doctor found the following injuries on his person: ‑
"(i) A stab wound 3" x 1" x deep on left side of the abdomen transversely at upper part. Intestines have come out from the wounds.
(ii) A superficial cut 1" x 1/6" vertical to injury No. 1 on the left side of the abdomen.
(iii) A superficial cut 1/3" x 1/8" on left side of the abdomen just outer to injury No. 1.
(iv) A stab wound 1 " x 1/2" x 2" upward on the left side of the back at lower part opposite injury No. 1."
Injury No. 1 was dangerous to life. Injury No. 4 was kept under observation. The rest were simple. All caused by a sharp‑edged weapon within the duration of 6 hours.
3. Since Mansab Ali (deceased's) condition was serious, the doctor, vide rukka Exh. P. E. informed the local police to arrange for recording his statement. P. W. 7 Muhammad Khan, A. S. I. on receipt of the rukka proceeded to Khushab, Civil Hospital. He made an application Exh. P. D. to enquire whether Mansab Ali was fit to make a statement. The doctor replied in‑ the affirmative: He then recorded his statement. The doctor endorsed it at Exh. P. D./1 that the injured remained in senses throughout. On the basis of Exh. P. C. F. I. R. Exh. P. C./2 was registered oat police Station Khushab at 3‑30 a. m. the same .night. Thereafter, the case seas investigated.
4. On 4th October, 1979 the A. S. I. arrested Muhammad Afzal, accused. On 6th October, 1979, Noor Muhammad, accused, was arrested. On 7th October, 1979, Noor Muhammad, accused, while in police custody 'cad to the recovery of vahola Exh. P. D. from his kotha. It was taken into possession vide memo. Exh. P. J. attested by P. W. 6 Muhammad Iqbal and Muhammad Khan (given up as unnecessary). On 28th October, 1979, Muhammad Afzal while in police custody led 'to the recovery of blood‑stained spear P. 2‑from his house. It was taken into possession vide memo. Exh. P. J. attested by P. W. 6 Muhammad lqbal and P. W. 2 Muhammad Ismail, Foot Constable.
5. Mansab Ali died about a month and eleven days after the occur rence. His injury statement and inquest report Exh. P. G. and Exh. P. G./1, respectively were prepared by Abdul Sattar, A. S. I., who partly investigated the case and sent the dead body for its post‑mortem examination.
6. P. W. 4 Dr. Muhammad Altaf Hussain, Senior Medical Officer, D. H. Q., Hospital, Sargodha., held the autopsy on 10th November, 1979 at 1 p. m.‑on the dead body of Mansab Ali and found the following injuries on it :‑
(i) A healed operated scar 16' alongwith the 3 holes 1/4" c. m. x 1 /6 c. m. each with discharging pus.
(ii) A septic wound 6 c. m. x 4 c. m. (bed sore) on the back and outer aspect of left buttock.
(iii) A septic wound 8 c. m. x 6 c. m. (bed sore) on the back.
(iv) A septic wound 4 x 2 c. m. on the back left side, discharging faecal matter:
In his opinion cause of death was peritonitis, which resulted from the injury of colon. After completing the investigation the accused were sent up for trial.
7. Both accused denied guilt and ascribed the case to enmity; Explaining the case against him, Muhammad Afzal accused, made the following statement.
"I am innocent. In fact on the day of occurrence I was watering my field. Mansab Khan deceased armed with Bang and Iqbal P. W. armed with spear came there and attacked me and inflicted me injuries. I fell down. Deceased grapled with me and in the mean time Iqbal P. W. tried to give me a spear blow, which struck the deceased due to the dark night. On the same day, I was admitted in the D. H. Q. Hospital, Sargodha from where police arrested me and on the same day I was sent to the judicial lock‑up. My son. Noor Muhammad had been roped in falsely."
Supporting the statement of his father Noor Muhammad accused said that be was not present at the spot.
8. Three witnesses were produced in defence. D. W. 1 Dr. Abdul Mannan, Radiologist D. H. Q. Hospital, Sargodha, who conducted the X‑ray examination of Muhammad Afzal's forearm and found a fracture of ulna bone third upper part. Exh. D. A. is the attested photostat copy of its original certificate. D. W. 2 Dr. Syed Muhammad Firdous, Medical Officer, Rural Health Centre, Garb Maharaja, District Jhang, conducted the medical examination of Muhammad Afzal on 28th September, 1979 and found the following injuries on him: ‑
(i) A lacerated wound 2 c. m. x 1 /4 c. m. x bone deep on the left side of the top of the head 10 c. m. above the left ear.
(ii) A swelling 17 c. m. x 23 c. m. on the left fore‑arm upper 2/3rd part.
(iii) A contusion 13 c. m. x 3 c. m. on the back of right shoulder upper part.
(iv) A contusion 8 c. m. x 2 c. m. on the back of right chest upper part.
(v) A contusion 16 c. m. x 8 c. m. on the back of left chest upper part with swelling an area of 18 c. m. x 16 c. m.
(vi) A contusion 1 c. m. x 2 c. m, on the back of the left side of the abdomen closed to the mid‑line.
(vii) A contusion 10 c. m. x 2 c, m. on the front of right upper part.
(viii) A contusion 9 c. m. x 2 c. m. on the right thigh and middle and outer part."
All the injuries were caused by blunt weapons within a duration of 24 hours. The patient was admitted in the hospital the same day. Exh. D. B. is the attested copy of his medico‑legal report. On 3rd October, 1979, vide X‑ray 2069‑70 dated 2nd October, 1979 fracture of the left fore arm was found, therefore, injury No. 2 was declared as grievous. Exh. D. C. is the report produced by him.
9. D. W. 3 Ghulam Hussain Abid, Record Keeper, Sessions Court, Sargodha, produced the record of bail petition (No. 723/80) made by Noor Muhammad, accused. Certified copy of the birth register of Noor Muhammad, accused, attached with this application was Exh. D. C. Trial Court came to the conclusion that the defence version was an after thought and that the prosecution was not bound to explain the injuries on the person of the accused, which according to it were not caused during the occurrence. Relying on the dying declaration and the other prosecu tion evidence, it considered the case satisfactorily proved against the accused.
10. Learned counsel for the appellants contended that this trial Court did not take into consideration that Muhammad Iqbal, the solitary eye‑witness, produced by the prosecution in this case, though, a brother of Muhammad Afzal, accused, was in fact inimical towards him. Further contended that reliance could also not be placed upon the dying declara tion in this case because there was previous enmity between the deceased and the appellants. Deceased's statement as such also required corroboration, which there is none in this case. Criticizing the recovery, learned counsel for the appellants contended that spear Exh. P. 2 which was attributed to Muhammad Afzal, appellant, was said to have been stained with human blood. But under the circumstances of this case, it was highly improb ble that blood would remain on the weapon for such a long time. Further contented that its recovery was also not satisfactorily proved because besides the Investigating Officer, the recovery was attested by P. W. 6 lqbal, who is admittedly inimical towards the accused. P. W. 2 Ismail, F. C. who also attested the recovery memo. did not mention a word about this recovery. Moreover with regard to the spear, it may be mentioned here that the Investigating Officer, did not state on which date be had deposited it in the malkhana with Moharrir, nor P. W. 3 Ahmad Khan, Moharrir stated as to when he received this parcel. He did not even mention when he handed it over to Ismail. F. C. for its transmission to the Chemical Examiner. However; P. W. Ismail, F. C., did state that on 3rd December, 1979, he received the parcel from the Moharrir for its onword transmission to the Chemical Examiner. It is noteworthy that the weapon was said to have been recovered in October, 1979 and was sent A for examination in December, 1979. Under these circumstances I find force in the submission made about the recovery of the spear, which has not been satisfactorily proved by the prosecution.
11. The submission that P. W. 6 Muhammad lqbal was inimical towards the accused is supported by the admission of the witness that a few months before the occurrence in this case, there was a dispute over land in which the witness and Mansab Ali (deceased) were on one side and were injured by his brother Afzal (accused), Sattar and some others. He further admitted that the occurrence was reported and two F. 1. Rs. were registered by the police; in one case, Muhammad Afzal accused was challaned as the assailant of the witness and Mansab deceased, whereas the witness and Mansab Ali deceased were challaned for causing injuries to one Sattar. According to him, both cases were pending when the occurrence in this case took place. Besides the strained relations of the accused with the witnesses and the deceased, it was also admitted by P. W. Akbar Ali that the widow of Mansab (deceased) was living with him and that on this count his wife Mst. Noor Khatoon had got annoyed and had left him. He, denied his illicit relations with the widow of Mansab deceased. In view of the aforementioned admitted facts, it is necessary to seek corrobo ration of the evidence of P. W. lqbal and of the dying declaration Exh. P. C. from independent source. The dying declaration of Mansab deceased was per se not enough corroboration because according to the admission made by. P. W. Iqbal, the deceased had also strained. relations' with the accused. It may also be added here that according to P. W. Iqbal, he was with the deceased when the water decreased and they both went to check it up. This was not his position, before the police. In the dying declaration, Mansab had said that Iqbal reached on his alarm. Further, I find that in his cross‑examination, P. W. Iqbal stated that it was a dark night and that the servant had a lantern with him. Before the police, there was no mention of the lantern, and their servant. Admittedly, neither the deceased in his statement Exh. P.C. nor Iqbal P. W. had explained injuries suffered by the accused. Strangely enough the Investigating Officer under cross‑examination‑had first admitted that Afzal, accused, had also received injuries in the present occurrence, and that he was admitted in the hospital at Sargodha but he changed his statement and said that he did not know anything about it. He, however, did admit that the accused alleged that he was injured in the present occurrence at the hands of the deceased and P. W. Iqbal, yet
he did not obtain the medico-legal certificate of the accused to probe further into the defence version. This admission made by the Investigating Officer adversely reflects on the investigating of this case. Simply because P. W. Iqbal is the real brother of Muhammad Afzal accused per se not enough to rely on his statement. On the contrary his 'amity with his brother over laud is proved in the evidence of this case. He seas therefore an inimical witness. The fracture of Muhammad Afzal accused's ulna bone can by no stretch of imagination be called a self‑inflicted injury. There are injury on his head also. Obviously, the prosecution has concealed his injuries, which have been prayed by tae defence witnesses. If thug follows that in the dying declaration Exh. P, C. the deceased did not give the true account of the occurrence. Similarly the solitary eye‑witness Muhammad Iqbal also had the same line. In these circumstances, the dying declaration required corroboration from independent source, which is not forthcoming in the use, because P. W. 6 Muhammad lqbal had criminal litigation with the accused, which was then pending and it had been demonstrated under cross‑examination that he had not given a true account of the occur rence. As such the statement of P. W. Muhammad lqbal and dying declaration would be at par, and could not be relied upon. Consequently giving the benefit of doubt to the appellants, their appeal accepted and their conviction and sentence are set aside. They shall be released forthwith, if not required in any other case.
M. Y. H. Appeal accepted.
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