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Petition for Special Leave to Appeal No. 28‑R of 1980, decided on 7th March, 1984.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 19‑4‑1980 in Criminal Appeal No. 655 of 1979).
‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Appeal against acquittal‑‑Ocular testimony, evidence of recovery and circumstantial evidence disbelieved‑‑Dying declaration doubtful‑‑No error in appraisal of evidence found‑‑Petition being devoid of substance, dismissed.
Sardar Muhammad Ishaq Khan, Advocate and M.A. Siddiqi, Advocate‑on‑Record for Petitioner.
Raja Muhammad Anwar, Senior Advocate and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos 1 and 2.
‑‑The petitioner, who is the maternal -uncle of deceased Mahboob Khan, has filed this petition to seek leave against the acquittal of the respondents on the charge of murder.
According to the prosecution, the respondents are brothers inter se and also related to deceased Mahboob Khan. A room of their house, adjoining that of the deceased, had fallen due to rains about two years prior to the present incident; and as the rain water used to collect and damage the house of the deceased, he requested them to remove the Deoris, but they did not pay any heed to it. At 7 p.m. on 6th of July, 1978, the deceased invoked the aid of Khizar Zaman and Muhammad Zaman to persuade the respondents to do the needful; and as they reached the courtyard of the house of the respondents they belaboured the deceased with hatchets. Respondent Muhammad Razzaq gave a hatchet blow but it did not strike the deceased as he managed to hold its handle. However, the hatchet blow given by Muhammad Nawaz struck him on the left side of his neck which proved fatal. The witnesses, thereupon, caught hold of the respondents but later they released them. The deceased was taken to the Civil hospital, Kahuta; and or the next day, at 9 a.m. information was conveyed to the S.H.O. of Police Station Kallar Syedan about his serious condition and, thereupon, Abdul Latif, Head Constable, proceeded to the hospital and recorded the statement of the deceased at 11 a.m. as he was told by the medical officer that he was in a fit condition to make the statement. His thumb‑impression was taken on the statement which was treated as an F.I.R. in the case. The deceased expired on 8th of July, 1978.
The respondents were arrested on 9th of July, 1978, and from their persons blood‑stained clothes were seized. On 11th of July, 1978, Muhammad Nawaz led to the recovery of a blood‑stained hatchet.
The prosecution examined Shah Nawaz, P.W. 7, and Khizar Zaman, P.W. 8. Muhammad Zaman was examined as Court witness as it was alleged that he was wonover. He was also related to both the parties. Shah Nawaz, P.W. 7, was an uncle of the deceased and also the brother‑in‑law of Muhammad Zaman. Khizar Zaman was not related to the parties but he was a Lambardar.
The trial Court disbelieved the evidence relating to the recovery of the blood‑stained clothes and the hatchet but accepted the dying declaration as it found to have been corroborated by the testimony of Khizar Zaman. It did not place any reliance on the evidence of Shah Nawaz, P.W. 7. The testimony of Muhammad Zaman was not helpful as he showed ignorance about the incident. Accordingly, the trial Court convicted the respondents under section 302 read with section 34, P.P.C. As the fatal blow was caused by Muhammad Nawaz, he was sentenced to death and to pay a fine of Rs.2,000 while Muhammad Razzaq was sentenced to imprisonment for life and further to pay a fine of Rs.2,000 or in default to further undergo R.I. for one year.
On appeal and reference, the High Court did not place reliance on the evidence of Khizar Zaman although it held that he had no animus against the respondents and was an independent witness. The considerations which weighed with the High Court were firstly, that as a Lambardar he should have taken upon himself the duty to lodge the F.I.R. promptly which he failed to perform; secondly, that having apprehended the respondents, he let them off which was an unnatural conduct affecting his credibility; and thirdly, that the spot where the incident happened did not lie on the path leading from his house to that of the respondents. The High Court also rejected the dying declaration on the premises that it was not corroborated. The High Court thus acquitted them by judgment, dated 19th of April, 1980.
In seeking leave to appeal the learned counsel contended that the High Court has not given any positive finding as to any defect in the dying declaration before rejecting it; and that as it was duly recorded, it should have been given due consideration. It is true that the High Court has not expressed itself as to why it did not place reliance on the dying declaration but it transpires from the discussion in the judgment that it felt doubtful as to the truthfulness of the prosecution case in the light of the unnatural conduct of Khizar Zaman, P.W. 8, who alone could have corroborated it and the inordinate delay in lodging the F.I.R. particularly when his close relatives were available but none of them promptly lodged it. We have ourselves examined as to whether this dying declaration could be accepted as an incriminating piece of evidence but from the nature of the injury sustained by the deceased and its locale, it seems difficult to us to believe that he could have been in his senses to give a coherent statement; and that if he was able to do so then why was his thumb‑impression taken when he was literate and could sign. This obviously shows that he was disabled as not only his spinal cord but his neck vertebra was also cut and, therefore, he could not have used his hand. It thus remains a' doubtful feature as to whether the deceased had, in fact, given the statement.
The learned counsel next contended that the High Court should not have rejected the testimony of Khizar Zaman but having examined his evidence, we find that he was not able to explain his own conduct in not promptly lodging the F.I.R. and in releasing the respondents after apprehending them. This obviously reflects on his credibility and no fault can be found in the view taken by the High Court.
As for the third ground, namely, that the spot where the incident happened did not lie on the path leading to the houses of the deceased and the respondents, the Court has preferred the statement of Abdul Latif who stated that one had to take a circuitous route to reach the courtyard of the house of the respondents as a hedge blocked the pathway directly leading to the houses of the deceased and the respondents which was not shown in the site plan but was recalled by the witness. This reason cannot, therefore, be regarded as erroneous and the High Court could take the view as it did.
Both the Courts have disbelieved the evidence in regard to the recoveries and the ocular testimony of Shah Nawaz and Muhammad Zaman. The prosecution case, therefore, confines itself only to the dying declaration and the testimony of Khizar Zaman. The High Court, on an over all examination of the evidence was not satisfied with its truthfulness and, therefore, it did not place reliance on these pieces of evidence. Accordingly, we see no error in the appraisal of the evidence.
Finding no substance in the petition, we dismiss it.
M. I. Petition dismissed.
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