MUHAMMAD HALEEM, J.--Appellants Abdul Hakim (25), Moharram (20) and Alidino (21) were tried for the murder of Dur Muhammad alias Sawayo by the learned Additional Sessions Judge, Khairpur and convicted under section 302 read with section 34, P. P. C. and each one of them was sentenced to transportation for life. They have appealed.
2. The incident occurred on a pucca road near Rohri canal bridge on 11th March 1967 at 12-00 noon.
It is alleged that Dur Muhammad alias Sawayo had gone that day from his village Aathere to village Luqman which is at a distance of 2i miles, to visit Gulu (P. W. 2) in the morning. They were returning on a cycle and when they reached the eastern side of the Rohri canal bridge they saw the appellants standing on the eastern extremity of the bridge ; the appellants then challenged them to stop saying that "you had quarrelled with us over the chappal at the shop of Saleh Metlo and we will not spare you now". Dur Muhammad and Gulu thereupon replied that "you had stolen the chappal", upon which appellant Moharram struck a knife blow on Dur Muhammad ; another blow was struck on him by Abdul Hakim. Dur Muhammad then fell down and Gulu raised cries, which attracted Ali Gul (P. W. 6), Punhoon (P. W. 5) and Miral (P. W. 7). The appellants then ran away.
Dur Muhammad, who was injured, was carried in the jeep of Ghulam Nabi (P. W. 8), who had come that way shortly after the incident, to the Civil Hospital, Khairpur, where his statement was recorded by Muhammad Hasan Head Constable (P. W. 3) of Town Police Station, Khairpur. This statement was transcribed in 154 book and the papers were sent to Police Out-post Luqman for investigation the same day. As the incident had occurred within the jurisdiction of that Police out-post ; the investigation was taken up by Ghulam Mustafa A. S. I. (P. W. 11). He sent a letter to Dost Muhammad (P. W. 4), Head Munshi and III Class Magistrate, for recording the dying declaration of Dur Muhammad whose statement was recorded by him in the hospital at 8-30 p.m. on 11th March 1967 after it was certified by the doctor that Dur Muhammad was in a fit condition to give his statement.
The investigation officer inspected the place of incident on 12th March 1967. There was blood at the place of incident but it could not be scratched out as the surface of the road was hard. The mashirnama (Exh. 26) of the place of incident was however, prepared in the presence of Mashir Ghulam Ali (P. W. 10); he then recorded the statement of Ali Gul, Miral, Punhoon, Qabool and Muhammad Ismail. Dur Muhammad expired on 12th March 1967 at 1-45 p.m. His dead body was handed over to the Medical Officer for post-mortem examination. Moharram was arrested in the presence of Mashir Ghulam Nabi. This appellant then asked one boy to get his knife which was brought by him and produced before the investigation officer as per mashirnama (Exh. 27); it has no visible marks of blood on it and it appeared to be washed. This knife was also not sealed.
Appellant Abdul Hakim was also arrested in the presence of the same mashir. He asked his brother, Shahu, to bring the knife who produced it before the investigating officer and it was thereupon taken into possession as per mashirnama (Exh. 28). This knife had also no marks of blood on it and it was not sealed. Appellant Alidino was also arrested in the presence of the same mashir as per mashirnama (Exh. 29). No other incriminating articles were recovered from any of the three appellants. These two knives were sent for chemical analysis and according to the report (Exh. 34) of the chemical analyser they had blood on them.
3. Dr. Mujtaba Junejo performed the autopsy on the dead body of the deceased. He noticed two incised wounds, one on the epigastic region and the other on the left outerside of the lower chest.
In his opinion the first wound was sufficient in the ordinary course of nature to cause death and death had in fact resulted from it ; the second wound was simple in nature.
4. The appellants in their defence denied the prosecution case. It was alleged by appellant Abdul Hakim that his uncle had figured as a witness against Ali Gul in a murder case and, therefore, he had a grudge against him. Against Gulu and Punhoon this appellant stated that Loung, his Masat (mother's sister's son), had enticed away Mst. Sahib Khatoon, their cousin sister and had married her. They were, therefore, inimical towards him for that reason. He also stated that deceased Dur Muhammad and Gulu were bad characters and involved in a case under section 110, Cr. P. C. ; deceased Dur Muhammad had, therefore, involved him because of Gulu, his relation.
5. Appellant Moharram alleged enmity against Ali Gul over matrimonial affairs. According to this appellant, Mst. Nooran, a daughter of the cousin of Ali Gul was married to his brother Abdullah. Ali Gul induced her to get divorce through the Court and got her subsequently married to his brother, Uris. It was also stated that Ali Gul had accused this appellant of being a Karo with his wife, Mst.
Shama and that he had threatened to murder him. Ali Gul was a close friend of the deceased, Miral and Gulu. They were implicated in dacoity cases and they have, therefore, implicated him because of Ali Gul. He had denied having exchanged hot words with deceased Dur Muhammad, Lastly, he alleged that one Nabi Bux, a relation of Ali Gul, had filed a complaint against him and his brother for quarrelling with his nephew and beating him with lathis.
6. Appellant Alidino adopted the defence of appellant Moharram and further pleaded that his uncle Alim Faqir had given evidence against Ali Gul, a brother of Miral and, therefore, they had deposed against him. He also alleged that Ali Gul and Miral had stolen a bullock of his cousin Bagh.
They were challaned and let off by the Court. Appellant Hakim examined Alan (D. W. 1) in his defence ; the other two appellants led no defence.
7. The trial Court while convicting the appellants relied on the ocular evidence and the dying declarations but rejected the evidence of the securing of knives at the instance of appellants Moharram and Abdul Hakim.
8. The direct evidence is furnished by the testimony of Gulu (P. W. 2), Punhoon (P. W. 5) and Ali Gul (P. W. 6). Miral (P. W. 7) had seen the appellants runnit g away from the place of incident. His evidence was therefore circumstantial in nature. There are also the dying declarations made by deceased Dur Muhammad. One such declaration was made just after he had been brought to the hospital and the other at 8-30 p.m. that night. It was alleged by the prosecution that a pair of chappals belonging to Duru (Daim) Shaikh alias Din Muhammad, who worked as a coolie in the textile mill, was stolen from the mill premises. Abdur Rasool (P. W. 9), whose hari he was, asked the deceased to find out as to who had stolen his chappals. A day before the incident the deceased had a quarrel over these chappals with appellants Hakim and Moharram in the shop of Sahib at Shah Husain. The deceased had asked them to return the chappals ; the appellants had either denied or refused to return them. There was, therefore, an exchange of harsh words. The murder is said to be the outcome of this altercation.
9. Mr. A. G. Talpur, the learned counsel for the appellants, took us through the record of the case and urged at the Bar that the ocular evidence should not be relied on as it was interested and unreliable ; as for the dying declarations he contended that the deceased was unconscious and could not have made the two dying declarations as alleged by the prosecution.
In amplification of this contention he relied on the statement of Dr. Mujtaaba Hussain who had stated that the deceased was not in his senses at the time he examined him for the first time. The same reasoning was pressed even in the case of the second dying declaration which was recorded at 8-30 p.m. that night ; according to the learned counsel the deceased could not have then regained senses.
10.We have examined the evidence in the light of the criticism of the learned counsel for the appellants. Taking first the dying declarations, two such declarations were made by the deceased, one (Exh. 15) soon after his arrival in the hospital which was recorded by Muhammad Hasan Head Constable sometime between 14-20 and 14-45 hours after he had prepared the mashirnama of the injuries on his person, and the second (Exh. 18) was recorded by Dost Muhammad, a III Class Magistrate at 8-30 p.m. the same night. This declaration was recorded after Dr. Muhammad Ishaq had certified on the letter (Exh. 17) that Dur Muhammad was in his proper senses and would be able to give his statement.
11.There are, some doubtful features with regard to the making of the first dying declaration.
Muhammad Hasan, Head Constable, who had recorded this declaration, had stated that he found Dur Muhammad in a fit condition to make a statement. He, however, denied the suggestion that the injured was then unconscious. He also repelled the suggestion that this was in fact the statement of Gulu recorded in the name of deceased Dur Muhammad and that he did not call the doctor as he would not have certified the deceased to be in a fit condition to make the statement.
This witness had admitted in his examination-inchief that he had recorded the statement of Gulu after he had taken down the statement of the deceased. Ghulam Nabi (P. W. 8) who had taken the deceased in his jeep also confirmed the fact that the deceased was in a fit condition and had given the statement to the police. In his cross-examination this witness stated that till the time the statement of the deceased was recorded he had not been examined by the doctor. This position is not unanimous. Gulu although in the trial Court had supported this version yet before the committal Court he had stated that the doctor had seen the injured 10 or 15 minutes before the arrival of the police. He was confronted with this statement when he denied in the trial Court that he had not said so. This contradiction was thus brought on record as Exh.
9. The learned counsel has, therefore, on the basis of this contradiction urged that Dr. Mujtaba had definitely opined that the deceased was not in his senses when he examined him sometime after 1-30 p.m. and that the deceased could not have regained his senses to make a statement immediately thereafter. He, therefore, urged that the making of the first declaration was highly doubtful and that this declaration should, therefore, be ruled out of consideration. It is also in the evidence of Muhammad Hasan, that he had also recorded the statement of Gulu after he had recorded the dying declaration of the deceased. The failure of Muhammad Hasan to call the doctor to certify that he was in a fit condition is also not understandable, for a doctor could have been available to him for this purpose in the hospital. It has been denied by Muhammad Hasan that he had recorded the statement of Gulu in the name of the deceased yet the making of this declaration appears to us to be suspicious in the context of the above circumstances, for the possibility of preparing a statement after taking facts from Gulu and then affixing the thumb-impression of the deceased cannot be excluded. We are, therefore, for the above reasons, inclined to agree with the learned counsel for the appellants that the making of this dying declaration was doubtful and that it should therefore be ruled out of consideration. This is not all. There is then the second dying declaration.
This was recorded by Dost Muhammad, a III Class Magistrate, after Dr. Muhammad Ishaq hid certified that the deceased was in his senses and in a fit condition to give statement. Dr. Muhammad Ishaq had been examined and he had confirmed the contents of the certificate in his evidence. He was cross-examined and could not be dislodged from the position taken that the deceased was in his senses. There is, therefore, no reason for us to discard this dying declaration.
The learned counsel for the appellants, however, relied on the opinion of Dr. Mujtaba Husain to urge that the deceased was not in his senses when he was examined by him and that, according to the learned counsel, the deceased could not have regained his senses in the night to make the second declaration and that, therefore, the second declaration was also a fake one. This argument of the learned counsel is without substance as Dr. Mujtaba had only opined about the condition of the deceased at the time he had examined him. The second dying declaration was recorded after about 5 or 6 hours and there is no evidence on record to indicate that the deceased was not in his senses. We are, therefore, not inclined to agree with the learned counsel for the appellant on a supposed assumption that he could not have regained his senses at the time the second declaration was recorded. We would, therefore, repel this contention.
12. Two other objections were raised against the recording of the second declaration. The first was that at the time the second dying declaration was recorded the doctor was not present and the second was that his relations were present and that, therefore, they must have prompted him to make it. Dr. Muhammad Ishaq had stated that after examining the deceased he had given a certificate and thereafter he went on a round in the hospital. The presence of the doctor was not at all necessary as whatever he had to do was done by him. The statement had to be recorded by the Magistrate and his presence was, therefore, unnecessary. This objection is thus without any force.
Dost Muhammad, a III Class Magistrate, who had recorded the declaration of the deceased, had stated that the deceased was in a fit condition to give the statement and that he had recorded his statement. He denied the suggestion that the deceased was unconscious and that he had recorded the statement on the basis of the information given by his relations. The second objection is hypothetical as there is no material on record to lend support to it. The suggestion put to Dost Muhammad has been denied. There is, therefore, no substance in the second objection as well.
13.On the merits the learned counsel for the appellants attacked the second declaration on the ground that it contained more details than the first declaration. He laid emphasis on the fact that a cycle was mentioned and also a part was assigned to Alidino. The deceased alleged one more ground of enmity which was a quarrel of appellant Hakim with his Masat, Gulu Phulphoto. We have examined this contention and we feel that it is also without any substance. The details are not additions. The name of Alidino was also mentioned in the first declaration and since he had not assaulted the deceased, the deceased may not have assigned any part to him. Even what is said in the second dying declaration with regard to appellant Alidino is that he gave blows to Gulu, a prosecution witness. As for the cycle, the deceased may have omitted it as an insignificant detail in the agitated condition in which he then was when he made the first dying declaration. We would, therefore, repel the above objection as well.
14.There is now the ocular evidence. Gulu is by caste a Metlo while the deceased is a Phulphoto.
They are also not related to each other. There is an indication on record that he was closely connected with the deceased. The deceased had in fact gone to him that morning and according to this witness for the realisation of his debt of Rs, 50 or may be Rs,
100. This witness had denied the suggestion that his cousin's sister, itist. Sahib Khatoon, was enticed away by Loung, a cousin of accused Hakim, who had subsequently married her and that, therefore, he was inimical towards appellant Hakim. Hakim has also examined Alan in defence to establish his relationship and further to state that this witness and Punhoon, another prosecution witness, had threatened Hakim and Loung because of this enticement. The affidavit (Exh. 40) of Mst Sahib Khatoon filed in the case does not give any indication of her enticement ; all that she said was that she was married to Wazeer, which marriage has now been dissolved by the Court and that she was performing Nikah with Loung out of her own freewill. How Alan (D. W. 1) came into the picture and what he did in the matter is not apparent from his evidence. Mst. Sahib Khatoon married Loung out of her own choice and the question of enticement also does not appear to fit in the context of that affidavit. This Alan appears to us to be a got-up witness brought into the witness-box just to support the case of appellant Hakim with regard to the elopement of Mst. Sahib Khatoon. Even assuming that Mst.
Sahib Khatoon was the cousin sister of this appellant, yet the grievance of this witness could be against Loung and not appellant Hakim. His claim of being falsely implicated does not appeal to us to be correct. The presence of Gulu at the place of incident with the deceased is confirmed by the evidence of Ghulam Nabi (P. W. 8), who had taken them in his jeep and left them in the hospital.
Ghulam Nabi is not related either to the deceased or the appellants. He was merely passing that way in his jeep and had stopped it just to find out what had happened. There is no reason, therefore, for us to disbelieve his evidence. We have, therefore, no hesitation in accepting the evidence of Gulu.
15. The learned counsel for the appellants had urged that the absence of injuries on the person of Gulu suggests that he could not have been there, for if at all he was present he could not escape being injured. The appellants had no grievance with this witness. Their quarrel was with the deceased over the chappals. The contention that he could not escape being injured is, therefore, of no substance as there was no reason for appellants Hakim and Moharram to attack him with the knives. There is, however, an indication that he was given fist blows by appellant Alidino and others.
The fist blows will not leave any impression on the body. It is, therefore, futile to argue that the presence of Gulu could have been established only if he had injuries on him. Another criticism of his evidence was that a case was pending against him and the deceased under section 110, Cr. P.
C. This was to suggest that he was a man of bad character and his evidence could not be relied for that reason. We are unable to give any credence to this contention, for a person of bad character can be a credible witness. It is the inherent worth of his statement that would matter and not the character. The learned counsel then relied on a discrepancy viz., that this witness had stated that Punhoon had gone with him in the jeep while Punhoon himself had denied this fact. This is a matter of detail and the witness due to lapse of memory may have given this wrong fact, which in no manner affects his credibility. The learned counsel also relied on the fact that this witness did not give the name of the appellants to Ghulam Nabi or Miral. Miral was given the names of the appellants by the deceased himself, and even if this witness had not mentioned their names to Miral it was not necessary for him to do so as it would have been a repetition. As for Ghulam Nabi, he had said that after seeing the injuries he was satisfied that the deceased had been injured and that he did not enquire either from the deceased or Gulu as to who were the assailants. Neither the deceased nor Gulu gave him the names of the assailants. However, no question was put to Gulu as to why he did not give the names of the assailants to Ghulam Nabi. We would not, therefore, attach any significance to this objection in the absence of any explanation by the witness on this point.
The learned counsel for the appellants also attempted to attack the credibility of this witness because of the absence of the cycle from the place of incident. It may be recalled that the Investigating Officer visited the place of incident on 12th March 1967, for the first time. The cycle could not be expected to be there when it was not connected with the crime. It must have been removed before the arrival of the Investigating Officer on the 12th of March, a day after the incident, for it could not be expected that the cycle would be left unattended on a public road. There is evidence on record to show that the cycle was seen after the incident. We are, therefore, unable to attach any importance to this contention of the learned counsel as well.
16.The last criticism of the learned counsel for the applicants against Gulu was that he was an interested witness. It is true that he was closely connected with the deceased, yet we fail to see how his connection with the deceased could be a ground for the false implication of the appellants. We would, therefore, repel this contention as being without any substance. We have, therefore, no hesitation in believing this witness.
17.The next eye-witness is Punhoon. He is by caste a Metlo and a cousin of Gulu. According to this witness, he was going from Luqman village, where he resided, to Shah Husain on a cycle to see his ailing mother who was staying at the Dargah of Shah Husain since about a month and on the way he saw the incident. He then went away to Shah Husain where his mother was. The evidence of this witness is attacked on the ground that he was a chance witness and a relation of Gulu and on that account his evidence should not be accepted. We have examined his evidence and have found him to be a straightforward witness. He has stated that every day he went that way to see his mother and on that day he was also going to see his mother when be saw the incident. There appears to us no improbability in the reason given by him. His relationship with Gulu will not also affect his credibility, for apart from the relationship there is nothing in his evidence to show any hostility towards the appellants. This objection, therefore, is of no substance. The learned counsel further relied on the fact that Ghulam Nabi had not mentioned about his presence. It may be that Ghulam Nabi may have come after he had left or that he may not have known his name. In such a case, even if his name was not mentioned by Ghulam Nabi that will not make his presence doubtful. Similarly, if Miral had failed to mention his name in his 164 statement it could be an accidental omission and nothing can be built on it. We would, therefore, accept the evidence of Punhoon as well.
18.The third eye-witness is Ali Gul. He had also come on cries and had witnessed the incident. It was alleged against him that he had a dispute with Moharram over matrimonial affairs ; Mst.
Nooran, his relation who was married to the brother of Moharram, had got a divorce and that subsequently she married his brother. According to the learned counsel this divorce and the subsequent marriage of Mst. Nooran was with the connivance of this witness. Another enmity suggested was that one Alin Faqir, the father-in-law of appellant Alidino, had appeared as a prosecution witness against him when he was being prosecuted for the murder of Ghulam Brohi.
This witness was, therefore, inimical towards Alidino. In the context of the enmity suggested to this witness he had given an explanation that he was in detention when Mst. Nooran got a divorce. He could not therefore, be concerned in that matter. As for the evidence of Alim Faqir, he had stated that he did not implicate him. He had also denied that he committed a theft of the bullock of Bagh a cousin of appellant Alidino. There is, therefore, nothing on record to establish the enmity of this witness against appellants Moharram or Alidino. We cannot, therefore, brush aside his evidence merely on the ground that he is a man of bad character. Deceased Dur Muhammad had mentioned his name in his dying declaration and there is no reason for us to discard his evidence.
19.There remains now the evidence of Miral. He was employed as a Beldar in the Irrigation Department and, according to him, he was proceeding at noon time on duty towards the bridge where the incident had occurred. He had then seen three persons running away towards his side from the bridge side whom he identified to be the present three appellants. He then went further and saw the deceased lying with knife injuries and Aligul, Punhoon and Gulu sitting near him. He was also given the names of the appellants by the deceased. The evidence of this witness is attacked on the ground that Gulu did not Live to him the names of the appellants. According to the learned counsel, the omission reflects either the absence of Gulu or Miral, for if Gulu was present and Miral had come afterwards Gulu would certainly have given the names of the assailants. The learned counsel has, however, lost sight of the fact that the names of the assailants were given by the deceased himself. There was no occasion for a repetition. This contention, therefore, is of no substance. It was suggested to this witness that his brother and Ali Gul were prosecuted for the murder of Gullan Brohi and that Alim Faqir, the father-in-law of appellant Alidino was a witness in that case. One Allandino, an uncle of appellant Hakim, was also a witness in that case. There was thus a suggestion of enmity against appellants Alidino and Hakim. We do not, however, agree that this could be the reason for their false implication. Miral has no malice against these two appellants; there is, therefore, no reason that he would falsely implicate them. There is also no enmity of this witness against Moharram. He cannot also claim to be falsely implicated. There is, therefore, no reason to discard the evidence of Miral when additionally his name is also mentioned in the dying declaration of the deceased.
20.Ghulam Ali (P. W. 10) had stated that it was Miral who had told him that in his otak he was formed about the incident and that thereafter be (Ghulam Ali) went along with Aligul. Neither Miral has been questioned as to whether he did say this to Ghulam Ali nor Ali on that point as to whether he had accompanied him. We would not, therefore, attach any importance to this admission in the absence of such questions being either put to Miral or Aligul.
21.The learned counsel for the appellants laid emphasis on the fact that there is a room of the Irrigation Department in which a telephone is installed and at that time one Qabool was on duty in that room, and that Q ibool must have seen the incident, for the room is only 101 feet away from the place of incident and that it was possible to see the place of incident if the window was open. This Qabool has not been examined in the case although his statement was recorded by the Investigating Officer. There is nothing on record to establish that Qabool had witnessed the incident. It is true that Qabool had been examined by the police, but we do not know what statement he gave before the police. There is nothing on record to indicate why he was not examined ; if according to the counsel for the appellants, Qabool had witnessed the incident he could have caused his presence in the witness-box in defence. It is, therefore, wrong to contend that this witness had been wrongly withheld. After examining the evidence on record we have no hesitation in holding that all the three appellants were at the place of incident, out of whom appellants Hakim and Moharram had inflicted the knife blows on deceased Dur Muhammad.
22.The trial Court had rightly rejected the evidence of the securing of the knives from appellants Hakim and Moharram for cogent reasons. The learned counsel for the State was unable to advance any justification for coming to a contrary conclusion. There is, therefore, no reason for us to disagree with the reasons advanced by the trial Court for the rejection of this piece of evidence.
23.There remains now the question as to what offence was committed by the appellants ; so far as appellant Hakim and Moharram are concerned, their case stands on the same footing as each of them were armed with knives and had inflicted knife blows on the deceased. The case of appellant Alidino is, however, distinguishable from the case of these two appellants. He was not concerned with the altercation that took place over the theft of chappals between the deceased and the other two appellants. He was unarmed and had not attacked the deceased. There is no evidence of any pre-concert and it appears to us to be a chance meeting of the appellants with the deceased. Gulu (P. W. 2) has also stated that appellants Hakim and Moharram had taken out their knives and had stabbed the deceased. In this context, can it be said that appellant Alidino also shared the common intention with the other two appellants to kill the deceased ? The prosecution has not established that appellant Alidino had the knowledge that the two other appellants had knives with them and would use them to kill the deceased. The only part that he played was of giving fist blows to the prosecution witness Gulu. We are, therefore, unable to see as to how this common intention could be shared on the spur of the moment by appellant Alidino with the other two appellants. On this view of the matter, this question must be answered in the negative. The prosecution has, therefore, failed to establish that E appellant Alidino had shared the common intention to kill the deceased. We would, therefore, give to him the benefit of doubt and acquit him of the charge under section 302 read with section 34, P. P. C. The charge against the other two appellants under section 302 read with section 34, P. P. C. has been established beyond reasonable doubt and we would uphold their conviction and the sentence imposed on them and dismiss their appeal. The appeal of Alidino is allowed and he is ordered to be released forthwith unless required in some other case.