ABDUL SHAKURUL SALAM, J.---This order will dispose of Murder Reference No. 7/77 and Criminal Appeal No. 64/76. Noor Muhammad and Mir Muhammad sons of Muhammad Bakhah were tried under section 302/34, P. P. C. For the murder of Abdus Samad and were found guilty. The appellant Noor Muhammad was sentenced to death subject to confirmation by this Court and a fine of Rs.
1,000 in default to undergo six months' R.I. The appellant Mir Muhammad has been sentenced to life imprisonment and a fine of Rs, 1,000 in default of payment of fine to undergo six months' R. I.,-the fines if recovered, to be paid to the heirs of the deceased. This is vide judgment of the learned Sessions Judge, Rahimyar Khan, dated 30-9-1976.
2. Relevant facts for the disposal of the titled matters are as follows One Abdus Samad made a statement, on the basis of which F. I. R. Exh. P. A. Was recorded under section 307, P. P. C. At 5-00 a. m. On 10-9-1975, to the effect that he was a resident of Basti Ghulam Muhammad Kohal village Rangpur. During the night as usual he was sleeping on the roof of his Kotha. His brother Abdul Khaliq was sleeping in the Kotha and his uncle Abdul Rahim was sleeping along with his family in the courtyard of the house. At about mid-night he saw two persons, one of whom sat on his chest and the other, who had a Chhuri in his hand, started attacking him on the stomach and body. He saw that the person who was sitting on his chest was Mir Muhammad and the person who was attacking him was Noor Muhammad, sons of Muhammad Bakhsh, caste Kohal, residents of village Rangpur. On his (Abdus Samad) (Dhar, Dhar, his uncle Abdur Rahim brother Abdul Khaliq, Kareem Bakhsh son of Ghulam Muhammad and Abdul Sattar son of Ghulam Mustafa came there. Mir Muhammad was saying that he (Abdus Samad) should not be left alive. On Abdur Rahim etc.'s Lalkaras both the persons jumped from the Kotha and ran away. As he (Abdus Samad) had a lit lamp, in the light thereof the witnesses clearly identified the two persons. The cause of enmity was that Noor Muhammad suspected that he (Abdus Samad) had illicit relations with his (Noor Muhammad's) wife, Mst. Channan, although he had already cleared off his position through Biradari. But keeping that grievance, Noor Muhammad, finding an occasion, had tried to kill him. Since he was given serious injuries, he had been brought on a Charpai by Abdur Rahim son of Ghulam Mustafa, Karim Bakhsh son of Ghulam Farid, Abdul Sattar son of Ghulam Mustafa and Abdul Malik son of Elahi Bakhsh, caste Kahal, residents of the same village. After recording the statement Ch. Nazir Ahmad, S. I., S. H. O. Sent the injured Abdus Samad to Medical Officer Primary Health Centre, Mianwali Qurehisan, where he was examined by Dr. Abdul Sattar P. W. 2 on 10-9-1975 at 7-30 a.m. And the latter found the following injuries on Abdus Samad :
(1) Transverse incised wound 2--- x 1" x 1--- on outer side of left fore- arm in upper half.
(2) Transverse incised wound 1----- x 1" x 1" over right shoulder.
(3) Transverse incised wound 1----- x 1" x over right lower chest in front 3" above costal margin in nipple line liver substance coming out.
(4) Triangular incised wound mid way umbilious and opigastrium 2" each side omentum coming out.
(5) Oblique incised wound 1----- x 1" over left side of abdomen 3" outer and below umbilicus loops of small intestine coming out with four out ----- x ----- each visible.
(6) Oblique incised wound 1" x ----- x ----- in front right thigh upper one--third.
(7) Verticle incised wound 1----- x 1" x 1" on outer side o f right thigh.
(8) Verticle incised wound 3" x 1" x petella out over right knee.
(9) Incised wound 1' x ----- x ----- above right knee on outer side.
(10) Oblique incised wound 1" x ----- in front left thigh upper one third.
(11) Oblique incised wound 1----- x 1" x on medial side of left thigh at junction of middle one third with upper one third.
(12) Spindle shaped incised wound 5" x 3--- x bone deep muscle out on outer side of left thigh upper one-third.
(13) Oblique abrasion by incised wound 1----- x 1" m.m. Over abdomen on appendicular area.
(14) Transverse incised wound 1" x ----- x, ----- on back of left chest in the middle.
(15) Oblique incised wound 1----- x ----- x ----- over right buttock in lower part. Pulse was nil B. P nil patient in shock conscious restless all the injuries were caused by sharp weapon. Injuries Nos. 3, 4, 5 were declared dangerous to life injuries Nos. 8 and 12 were declared grievous rest were declared as simple duration within nine hours patient was referred to H. Q. Hospital, Rahimyarkhan after emergency treatment.
In cross-examination the Doctor stated "I cannot rule out the possibility that the victim after receiving the injuries might have lost his senses within 4/5 minutes or immediately after receiving the injuries. The state of unconsciousness remains for some hours but (volunteered) Abdus Samad injured was in senses when he came to me. It is possible that Abdus Samad injured might have gained consciousness half an hour before his arrival to me."
The injured died the same day at 10-30 a.m. The case was converted into one under section 302/34, P. P. C. The post-mortem examination was conducted next day on 11-9-1975 at 8-30 a.m. By Dr. Abdul Wahab, P. W. 1 who found the following injuries on the person of the deceased Abdus Samad
(1) An incised wound 1----- x 3/4" x skin deep on the back of left forearm at its middle.
(2) An incised wound transversely 1----- x 3/4" x 2" deep going vertically downwards in the right deltoid muscle on the right shoulder.
(3) An incised wound 1----- x ----- x going deep into the chest on the front and right side of chest 3----- below the right nipple.
(4) An incised wound 2" x ----- x skin deep transversely on the front and left side of abdomen 3" above the umbilicus. Another mixed with this transversely 1" x ----- x going deep into the abdomen downwards.
(5) An incised wound 1----- x 3/4" x going deep into the abdomen upwards on the left iliac fossa 1/2" inner to the left anterior superior iliac spine.
(6) Just inner to injury No. 5 an incised wound 1/3" x 1/6" x going deep in the left iliac fossa.
(7) An incised wound 5--- x 2----- x 1----- deep on the outer side of left thigh upper part obliquely).
(8) An incised wound 1" x ----- x skin deep on the front of the left thigh 1" below the left groin.
(9) An incised wound 1----- x ----- x 3" deep obliquely going upwards on the inner surface of left thigh at its upper 1/3rd.
(10) An incised wound 1" x ----- x skin deep on the front of right thigh upper part.
(11) An incised wound 3--- x 1--- x ----- deep on the right knee, a chip of knee osp. Bone out.
(13) An incised wound 1--- x 1/6--- x skin deep on the outer side of right thigh lower part.
(13) An incised wound 1" x 1/6" X skin deep on the back and left side of chest upper part.
(14) An incised wound 1----- x ----- x 1" deep on the back and outer surface of right thigh upper part.
(15) An incised wound 1----- x ----- x 2" deep on the right buttock.
"Intercostal space between 7th and 8th ribs were cut by injuries Nos. 3 and 13. Wall of abdomen was out. Peritoneum was injured having multiple cuts. Stomach was injured by injury No. 3 . . . . Small and large intestines were cut and had multiple performation . . . Liver left lobs was cut by injury 11o.3.
The Doctor was of the opinion that "death was caused due to the shock and haemorrhage from injuries Nos. 1 to 15 all caused by sharp weapon. All the injuries collectively and injuries Nos. 3, 4 and 5 individually were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. The probable time that elapsed between injuries and death was about 12 hours and between death and post-mortem examination was about 22 hours."
3. Ch. Nazir Ahmed, S. I. Then S. H. O. P. W. 12 went to the spot and made usual investigation. On 12-9- 1975, Noor Muhammad accused-appellant, while in custody, led to the recovery of blood-stained chhurri P. 6 vide memo. Exh. P. H. Which has been found to be stained with human blood by the Serologist vide Exh. P. N. On 29-10-1975, Abdul Rahim, P. W. 10 produced a lamp P. 10 stated to be burning at the time of occurrence which was taken into possession vide memo. Exh. P. J.
4. After investigation, the two accused were sent up for trial. Abdur Rahim P. W. 10 and Abdul Khaliq, P. W. 11 appeared as eye-witnesses to support the prosecution case as stated in the F.I.R. Which was treated as a dying, declaration of Abdus Samad. Abdul Karim P. W. 8 and Ghulam Yasin P. W. 9 appeared as recovery witnesses of chhuri P.6 on the pointing, while in custody, of Noor Muhammad appellant on 12-9-1975. Lamp P. 10 was produced by Abdur Rahim, P. W. 10 and its recovery was attested by the aforesaid recovery witnesses. The Investigating Officer is Ch. Nazir Ahmad, P. W. 12.
5. Relying on the evidence of motive, dying declaration and the ocular testimony of Abdur Rahim, P.
W. 10 and Abdul Khaliq, P. W. 11 coupled with the evidence of the recoveries of Chhuri P. 6 and. Lamp P: W. 10 as deposed to by Abdul Karim, P. W. 8 and Ghulam Yasin P. W. 9 and the medical evidence, the learned Sessions Judge found the appellants guilty and convicted and sentenced them as stated above.
6. Learned counsel appearing for the appellants has submitted that a perusal of the medical evidence would show that the injuries bad not come about in the way th6 injured had stated in the dying declaration. Learned counsel submits that injuries were on the chest, abdomen and upper thigh, which would show that if Mir Muhammad appellant had been sitting on the chest of the injured, as stated by the latter in the dying declaration, these injuries could not have been caused.
It is, secondly, contended that the injuries and their location would show that there must have been profused bleeding and therefore, -it would not have been possible for the injured to remain in consciousness hours later at 5 a.m. When he is said to have made the dying declaration. Learned counsel has pointed out that Dr. Abdul Sattar P. W. 2 stated in his medico-legal report Exh. P. B./3 made at 7-30 a.m. That the "pulse was nil, B. P. Nil, patient is shock, conscious, restless, all the injuries were caused by sharp weapon". In cross-examination, he stated that "I cannot rule out the possibility that the victim after receiving the injuries might have lost his senses within 4/5 minutes or immediately after receiving the injuries. The state of unconsciousness remains for some hours but (volunteered) Abdus Samad injured was in senses when he came to me. It is possible that Abdus Samad injured might have gained consciousness half an hour before his arrival to me."
Learned counsel submits that this evidence shows that the injured would have become unconscious soon on the receipt of the injuries and according to the medical evidence he might have regained consciousness at about 7 a.m. Therefore, there is no way of saying that the injured was in consciousness at 5 a. m. When he is said to have made the dying declaration. The contention of the learned counsel for the appellants is that because of the incised injuries causing cutting of intercostal space between 7th and 8th ribs by' injuries Nos. 3 and 13, wall of the abdomen, Partioneum with multiple cuts, small and large intestines cut, with multiple perforations, left lobs of liver injured by injury No. 3, all of which would have led to profused bleeding, it would not have been possible for the injured to remain in consciousness after 5 hours of the injuries to make the dying declaration. He has also submitted that the contents of the dyink declaration as mentioned above would show as if it were made by a person in a normal way giving all the details about the occurrence as well as the motive. The learned counsel has submitted that besides that it is not possible to believe that the injured was in consciousness at 5 a. m. When he is said to have made the dying declaration, the injured was accompanied by several of his relatives who were present at the police station when the statement was recorded, learned counsel has referred in this behalf to the statement of the eye--witnesses Abdur Rahim, P. W. 10 and Abdul Khaliq, P. W. 11 as well as that of Ch. Nazir Ahmad, S. I., Investig4ting Officer, P. W. 12, who stated that "the relatives of the deceased were present at the police station when I recorded the statement Exh. P. A. Of the deceased. I did not see the relatives outside when I started writing F.I.R. Exh. P. A." Therefore, the learned counsel contends, the dying declaration cannot be taken as free and not prompted. Hence, it is of no legal value. The learned counsel has next, contended that the two eye-witnesses produced are Abdul Rahim P. W. 10 and Abdul Khaliq P. W.
11. They are closely related to the deceased, being paternal- uncle and brother of the deceased respectively. He has also referred, for showing guilty against the appellants, to the statements of the aforesaid two witnesses in which it is admitted that there has been a continuous litigation between them and the appellants, both civil as well as original parties were also proceeded under section 107/151, Cr. P. C. .It was also stated that a case of abduction was pending against 30 persons, including the deceased. Learned counsel has, then submitted that the witnesses have admitted that the night of occurrence was dark. He submits it was first of the lunar month. Contention of the learned counsel for the appellants is that it would have, therefore, been not possible for the witnesses to identify the assailants. Learned counsel has added that the story of the burning of the lamp on the kotha, which was produced after one and a half 'Months of the occurrence, is clearly a padding because not only no villager usually keeps a burning lamp on the roof of the house but the lamp itself was not produced before the Investigating Officer for more than 1 I months. The learned counsel has concluded this aspect of the case by saying that the two eye--witnesses being interested in the deceased and inimical towards the appellants are not reliable, both because of the aforesaid reasons as well as for the difficulties in identification.
Learned counsel has also submitted that if the witnesses had seen the occurrence, they would have tried to overpower the appellants and certainly Mir Muhammad appellant who was admittedly empty handed. As regards the recoveries, especially of the chhurri on the pointing of Noor Muhammad, the learned counsel has submitted that the witnesses produced were Abdul Karim, P. W. 8 and Ghulam Yasin, P. W.
9. The former is a paternal uncle of the deceased and the latter is a cousin of the deceased. In other words, the learned counsel submits, only close relatives were made recovery witnesses and no independent witness was produced, even though at the time of the recovery, there were other persons present as admitted by both the recovery witnesses as well as the Investigating Officer. Learned counsel has also pointed out that Abdul Karim, P. W. 8, one of the recovery witnesses, had stated that "Many people including Lambardar were present at the time of recovery but the Thanedar did not join the Lambardar in the recovery of chhuri". Non joining of independent witnesses and joining of close relatives of the deceased, it is submitted, shows that the recovery is not reliable. Learned counsel for the appellants has submitted that when there had been a delay of three hours in recording of dying declaration, the same was ruled out vide PLD 1974 Lah.469. When relatives were not sent away before recording of the dying declaration by the Investigating Officer, the dying declaration was excluded. Reliance is made on 1973 SCMR 26. So also when dying declaration was at variance with other evidence. He has placed reliance on PLD 1974 Kar.
4. He has also referred to 1968 P Cr. L J 590 and PLD 1956 Pesh. 50 to submit that the indentification of the appellants in the dark night was not possible. He has, finally, submitted that in any case, evidence against Mir Muhammad appellant is absolutely unreliable because no person would go to commit a murder in the dead of the night without being armed and according to the prosecution case Mir Muhammad appellant was empty handed. The latter had no motive, nor, had he been attributed to have caused any injury.
7. Learned counsel for the State has submitted that the enmity is a double edged weapon and equally applies against the appellants for having committed the murder. Learned counsel has also submitted that the F. I. R. Was prompt as occurrence had taken place at the middle of the night, two hours were spent in reaching the police station, and the F. I. R. Was lodged at 5 a. m. Learned counsel has referred to 1976 SCMR 471 to submit that dying declaration can be believed and conviction follow on that alone. In the present case, the learned counsel submits, the dying declaration is also corroborated by medical, ocular and recovery, testimony. Therefore, he has submitted, the appellants have rightly been found guilty and convicted.
8. After having been taken through the evidence on the record and having heard thelearned counsel for the parties, we feel that there are some aspects of the case which require attention. The first is about the manner in which the injuries were caused to the deceased. According to the dying declaration, Mir Muhammad appellant was sitting on the chest of the injured and Noor Muhammad appellant was causing the injuries: Now, if Mir, Muhammad appellant were sitting on the chest of the injured, then, injuries on the chest, abdomen, etc. Could not be caused on the injured, especially by a person other than the one who was sitting on the chest, as is the case of the prosecution.
Therefore, the injuries have not been caused on the deceased in the manner as stated in the dying declaration. The declaration is inconsistent with medical evidence. The second aspect of the case is that on receipt of injuries on the front a part of the body cutting through in between two ribs, abdomen, peritoneum, small and large intestines, left lobe of liver injured, blood would obvious ly flow profusely. It would be rather difficult to believe that after ih receipt of as many injuries as 15, with sharp weapon, going deep iii vital parts of the body and profuse bleeding, a person would be in his senses after five hours to make a dying declaration. The only evidence in this behalf is that of Abdul Rahim, P. W. 10 and the Investigating Officer, Ch. Nazir Ahmad, P. W. 12 who had recorded the statement. The former is an interested and inimical witness and the latter had -to say so having recorded the statement. Of course, the statement was not recorded in the presence of any medical man. Dr. Abdul Sattar, P. W. 2 was examined on the point, he stated that "I cannot rule out the possi- -bility that the victim after receiving the injuries might have lost his senses within 4/5 minutes or immediately after receiving the injuries. The state of unconsciousness remains for some hours". The Doctor volunteered to say that "Abdus Samad injured was in senses when he came to me". He, further, stated that "it is possible that Abdus Samad injured might have gained consciousness half an hour before his arrival to me." The medical evidence, therefore, is of not much assistanc to the prosecution to show that the injured was in a state of conscious--ness at the time when the dying declaration is alleged to have been made. On the other hand, the medical evidence shows that in normal course the injured would have lost consciousness soon after injuries. In view of the injuries with sharp Weapon going deep in the soft middle part of the body cutting various organs, naturally leading to profuse bleeding, it is difficult to believe that the injured was in a fit state to make the dying declaration as alleged. Thirdly, the dying declaration is neat and crisp. It is hardly a statement in tenure and language of a dying man. Completeness of details and embellishments of language leave no doubt that it is a well drawn and nicely put statement. A dying declaration has to be a statement of a dying man and not a well arranged and prepared statement of somebody else. Then, it is admitted position that while the dying declaration was made in the police station, the relatives of the deceased were present and the were not asked to go out by the Officer recording the dying declaration. A dying declaration recorded in the presence of the relations was not relied upon in the case of Muhammad Latif and another v. Muhammad Hussain and 9 others (PLD 1966 SC 264). It has also been laid down by the learned Supreme Court in Ghulam Farid v. The State (PLD 1966 SC 264) that, "it is often found that a dying declaration made elsewhere than at a thana is more worthy of reliance than one made in the presence of the police, where also the relatives who have brought the injured man to the thana are generally present and usually cannot be prevented from putting a prepared case into the mouth of the deponent". In the present case, both conditions were present in so far as that the dying declaration was recorded at the police station and the relatives of the deceased were present. The case relied upon by the learned counsel for the State is distinguishable on facts as the declaration therein was prompt and without possibility of prompting. In all the circumstances of the case, when the dying declaration) in its contents is inconsistent with the medical evidence and it would be difficult to believe that the person, who had received 15 incised deep wounds in the front vital parts of his body and must have bled profusely, was still in his senses five hours later to make the dying declaration when that appears to be a prepared statement as well an recorded at a Thana in the presence of the relatives, it is not quite safe to rely on the dying declaration. This corroboration of the dying declaration is sought from the evidence of the two eye-witnesses Abdur Rahim, P. W. 10 and Abdul Khaliq P. W. 11, both of whom are not only interested in the deceased, being uncle and brother respectively, but are also admittedly inimical against the appellants because of civil as weii as criminal litigation amongst them. Though the presence of the witnesses in the house would be natural in the night being inmates thereof but their conduct is not consistent with human behaviour that they would not follow or catch any of the assailants even when one of them Mr. Muhammad, was admittedly empty handed. It appears that the witnesses woke up from their sleep when the assailants had done their job and sped away. The night was dark. That is why story of burning of the lamp by the side of the inured was introduced. It is common knowledge that villagers do not have lighted lamps while sleeping on roof. In--troduction of lamp is clear padding.
Moreover, it was produced after' 1-- months. This evidence is of a very little value. The recovery of Chhuri P. 5 is also of not much assistance because the recovery witnesses Abdul Karim, P. W. 8 and Ghulam Yasin, P. W. 9 are, again, not on interested, being paternal-uncle and cousin of the deceased respectively, but are also inimical towards the appellants. Independent persons, in spite of being available, were not made witnesses. It is established law of high authority as laid down in Director of Public Prosecution v. Hunter ((1972) 3 All E R 1066) by the House of Lords that "the purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible evidence". This being the law as enunciated, it is quite clear that the corroborrative evidence in the case in hand cannot give validity or credence to the evidence of dying declaration which is itself deficient or suspect or incredible. Moreover, the corroborative evidence itself is not completely credible in the circumstances of the case. The medical evidence can hardly be used as corroborative evidence in the case, because there are more chances of its showing the other evidence unworthy of credit then confirming the same. In the set of evidence on the record, it is not quite safe to hold that the prosecution has proved its case by reliable evidence against the appellants beyond reasonable doubt. The benefit of doubt obviously has to go to an accused person. Therefore, allowing the same to the appellants, it is held that the prosecution has failed to prove its case and bring home the guilt to the appellants. Hence, the appeal is accepted and the reference is rejected. The sentence of death is not confirmed. The appellants shall be released forthwith, if they are not wanted in any other case. Fine if already realized shall be refunded. Hence, the appeal is accepted and the reference is rejected. The sentence of death is not confirmed.