' Mahmood accused was tried under section 302, P. P. C. For the murder of Nasir alias Bhola deceased, by Ch. Muhammad Azam, Sessions Judge, Gujrat, who by his judgment dated 16th of December, 1976, convicted the accused under the said section and sentenced him to suffer imprisonment for life. Since the accused was a very poor person, no sentence of fine was imposed upon him.
2. The brief facts of the case are that on 23rd November, 1973, at 2 p.m. An F. I. R. Was lodged by Khalid Javed P. W. 7 at Police Station City, Gujrat. According to the first informant, he along with Nasir deceased and Amjad P. W. 9 were employed in Taranam Cinema. On the fateful day, i,e, 23rd November 1973, they were advertising the film in the city through a loud speaker set in a tonga. At about 1 p. m. When they reached Fawara Chowk, Amir Saeed and the accused Mahmood came there and started abusing Nasir deceased and also grappled with him. Mahmood accused gave whip blows to Nasir deceased with the whip of the Tonga. The complainant and Amjad P. Ws.
However, separated them. The three persons then continued their journey in the tonga advertising the film and when they reached near Taranam Cinema, on the G. T. Road, Mahmood accused and Amir Saeed again came there and started abusing the deceased, who came down from the Tonga and both Mahmood accused and Amir Saeed grappled with him. Suddenly Mahmood accused took out a chhuri (dagger) from his dub of the shalwar and gave dagger blows to Nasir deceased on his chest and on the left side of his body. Amir Saeed continued to hold the deceased. The occurrence was seen by. Abdul Qayyum, Manager, Taranam Cinema as well. Mahmood accused and Amir Saeed then ran away. In the meantime a Traffic Constable apprehended Mahmood accused along with chhuri. Amir Saeed was also apprehended, Nasir (deceased) was taken to Aziz Bhatti Hospital in an injured condition. Mahmood accused and Amir Saeed along with the chhuri were produced before the Sub-Inspector in the City Police Station. Giving the details of the motive, the first informant inter alia stated that about 15 to 20 days ago Mahmood accused and Nasir deceased had a fight in Mohallah Shah Hussain where Mahmood accused threatened Nasir that he would deal with him later on.
3. Both Mahmood accused and Amir Saeed were produced at the Police Station by the eye- witnesses and the constable who had captured Mahmood accused. Khalid Javed P. W. 7 lodged the F.
1. R. Exh. P. A. At Police Station City, Gujrat at 2 p.m , which was recorded by Ch. Fazal Karim S. I. P. W.
11. Riasat Ali Constable P. W. 10 produced chhuri P. 1, which bad been snatched from Mahmood accused by him, which was taken into possession vide memo. P. B. Likewise, cycle P. 5 belong-. Ing to Amir Saeed was also taken into possession vide memo. P. D.
4. Nasir deceased was taken to Aziz Bhatti Shaheed Hospital where Dr. Sami Tariq P. W. 2 examined him at 2 p.m. And found two stab wounds, five incised wounds, a lacerated wound and two bruises, on his chest, abdomen, armpit, lumber region and left upper-arm and elbow. The patient was semi-conscious. Pulse was weak and thread. As the patient was a surgical case, Dr. Sami Tariq P.
W. 2 sent the patient to the Surgeon for surgical treatment.
5. On the same day at 10-30 p.m., Agha Javed Husain, M. I. C. P. W. 1, recorded the dying declaration Exh. P. W.-1./D of the deceased (Nasir) in the operation theatre of the hospital.
6. After the investigation was completed, Mahmood accused was sent up for trial, whereas Amir Saeed who was found innocent by the Police. Was not proceeded against. The learned Sessions Judge, who tried the case, relying upon the statements of Khalid Javed P. W. 7 and Amjad P. W. 9 recorded before the Committing Magistrate and transferred to his file under section 265-J, Cr. P. C.
And the dying declaration Exh. P. W.-1(D of the deceased, convicted and sentenced Mahmood accused, as stated in para. 1 above. The learned Sessions Judge relied upon the statements of the two eye-witnesses made before the C. M. As the said witnesses had turned hostile in his Court.
Being aggrieved by the said conviction and sentence recorded against him, the accused preferred an appeal against the same, which is now before me for disposal.
7. I have heard the learned counsel for the appellant and the State and have also perused the record. Before the inquiry could be completed and charge framed, the case was transferred to the Sessions Court under the Law Reforms Ordinance. The trial in this case started on 30th October 1976. Khalid Javed P. W. 7 and Amjad P. W. 9, who appeared as eye-witnesses in the case, were examined and cross-examined on 8th December 1976 and 11th December 1976, respectively, when their statements made before the C. M. Were transferred to the Sessions file under section 265-J, Cr. P. C. In what circumstances the said statements were transferred under section 265-J, Cr. P. C. Is not understood, because the said section covers only the transfer of statements of witnesses duly recorded under section 164, Cr. P. C. If the same are made in the presence of the accused or the accused has notice of the same and the accused has been given an opportunity of cross- examining the witnesses. The statements recorded by a Magistrate under section 164, Cr. P. C. Are those which are made to him in the course of investigation under Chapter XIV, Cr. P. C. Or at any time afterwards. But in any case before the commencement of the inquiry or trial. The statements, however, which were transferred by the learned Sessions Judge, were made to the Magistrate during inquiry and were not covered by section 164, Cr. P. C. In these circumstances, the transfer of the statements of Khalid Javed P. W. 7 and Amjad P. W. 9 made by them before the C. M. To the Sessions file was4 illegal and the same could not be relied upon as evidence in the case. In view of the fact that the said two P. Ws. Did not support the prosecution story at the trial, the instant case is one of no ocular evidence.
8. What now remains to be examined is the dying declaration Exh. P. W-1/D of the deceased recorded by Agha Javed Hussain, M.I.C. P. W.
1. According to the evidence of the Magistrate he reached the hospital sometime after 10-30 p.m.
Where a constable and two other persons were present with the injured, who was then in the operation theatre. The Magistrate could not say if the injured had already been operated upon or the operation had yet to be conducted. However, he stated that he inquired from Dr. Sami Tariq P.
W. 2 if the injured Nasir was in a fit condition to make a statement, who replied in the affirmative, whereupon he recorded the statement Exh. P. W-IC of the doctor to that effect and thereafter recorded the statement Exh. P. W-lD of the deceased, which was read over to and thumb-marked by the deceased in token of its correctness. A perusal of the dying declaration Exh. P. W-1/13 shows that the writing marked as Exh. P. W-1/C appears to have been scribed in later, as it has been squeezed . Into the top portion of the sheet containing the dying declaration. This noting (Exh. P. W- I/C) is not the formal statement of Dr. Sami Tariq P. W. 2 himself clearly certifying that the injured Nasir was in a fit condition to make a statement or that he remained in a fit condition throughout when the said statement was made or that he was present when the whole of the said statement was recorded, but it is the statement of the Magistrate himself that the doctor has certified that the injured is in a fit condition to make a statement where after his own initial and that of the doctor appear to be squeezed in. Whether the P. W-1/C was made before or at the time of the recording of the dying declaration Exh. P. W-1/D or some time later. Becomes clear when one reads the evidence of Dr. Sami ?Ark! P. W.
2. In his examination-in-chief Dr. Sami Tariq P. W. 2 stated that when Nasir injured was brought to the hospital, he examined him and found him fit to make a statement, where after his statement Exh. P. W-1/C was recorded by the Magistrate, which bears his signature. He did not mention that the dying declaration Exh. P. W-1/D was recorded in his presence. However, when one inspects the statement of the said witness made before the C. M., which was transferred to the Sessions file under section 5(i9, Cr. P. C., he mentions that when he examined the patient (Nasir) he was semi- conscious. He stated in cross-examination that he tried to inquire from the patient but he was unconscious and during the time that he attended to the patient, he did not come in senses. He did not state at all before the C M. That at any stage the patient was conscious or that he had signed the noting Exh. p. W.-1/C certifying the ability of the patient to give a statement before Agha Javed Husairt M. I. C. p. W.
1. It was only during the trial that Dr. Sami Tariq P. W. 2 for the first time introduced the existence of the note Exh. P. W-1/C, which he had certified for the benefit of the Magistrate to enable him to record the dying declaration. The fact that the noting Exh. P. W-1/C, which appears to be squeezed into the sheet above the dying declaration Exh. P. W.-1/D, the omission of Dr. Sami Tariq P. W. 2 to refer to the said noting in his evidence before the C. M. And the clear admission by the same doctor before the C. M. That the patient when he was brought into the hospital was semi-conscious and later became unconscious and remained so during the time that he attended the patient, clearly show that the dying declaration Exh. P. W.-1/D cannot be implicitly relied upon. The dying declaration Exh. P. W.-1/D also has many cuttings ; the Magistrate has scored out words and letters at three places. The time when the dying declaration was recorded is not given. There is no certificate of the Magistrate under-Neath that all other persons, if any, around the injured, were made to leave the room when he recorded the dying declaration, or tha the injured when he made the statement continued to remain in a conscious state throughout. The name of Abdul Qayyum, referred to in the F. I. R. As an eye-witness, does not find any mention in the dying declaration and the dying declaration also was not put to th accused under section 342, Cr. P. C, In these circumstances, it is highly unsafe for me to rely upon the dying declaration Exh. P. W-1/D, which have no alternative but to reject.
9. From the above, it is apparent that there being no ocular evidence is the case and the dying declaration being unworthy of reliance, the easel of the prosecution falls to the ground. The appellant is, therefore, entitled to the benefit of doubt.
10. For the foregoing reasons, this appeal is accepted and the conviction and sentence of the appellant are set aside. The appellant is on bail and his bail bond shall stand discharged.