' ZAFFAR HUSSAIN MIRZA, J.-The three appellants; namely Wazir Ali, Khalil and Azizullah, all by caste Burior and residents of Shikarpur Town, were tried and convicted under section 324/34, P. P. C. For causing hurt to one Abdul Haq and two of them namely appellants Wazir Ali and Azizullah were further convicted under section 302/34, P. P. C. For committing the murder of one Abdul Hakim, by the learned Additional Sessions Judge, Shikarpur. Under section 324/34 each of the appellants was sentenced to one year and fine of Rs'. 100 or in default to suffer R. I. For 6 months more and under section 302/34 the said two appellants were each sentenced to imprisonment for life and a fine of Rs, 1,000 or in default to suffer R. I. For one year more. The appellants have appealed against their aforesaid convictions and sentences.
2. The prosecution case against the. Appellants was that complainant Abdul Haq was in the employment of his brother-in-law Khuda Bux who was a building contractor. Appellant Wazir Ali also used to work as labourer with Khuda Bux but his services were terminated by the complainant on account of misconduct. As a result appellant Wazir Ali developed grudge against the complainant and threatened him with dire consequences. On account of this dispute, on a previous occasion Wazir Ali and his relations, about one month before the incident in this case, assaulted the complainant with knife and injured him which matter was reported with the police.
On 25-8-1975 the fateful day when the complainant along with his friend deceased Abdul Hakim Pirzada were waiting to board the bus for going to Jacobabad, near Meerani Petrol Pump, the present appellants came over there. Appellant Khalil started abusing the complainant and opened a knife and attacked him but the complainant warded off the blow. However, in the process the middle finger, of his left hand was injured. In the meantime deceased Abdul Hakim intervened upon which he was caught hold by appellant Azizullah and Wazir Ali whipped out a dagger with which he stabbed him in the abdomen. The deceased cried out and fell down. On the alarm raised by the two victims P. Ws. Shabbir Ahmed, Abdul Majid and others came over and rescued them.
After that the culprits went away.
3. P. W. Abdul Haq then removed the injured Abdul Hakim to Police Station, Foujdari, Shikarpur at 10- 20 a.m. And lodged the report of the crime which was recorded by H. C. Abdul Rashid. The H. C.
Prepared the mashirnama of the injuries of Abdul Hakim and complainant Abdul Haq. He also recorded the statement of Abdul Hakim at the Police Station. After referring the injured to the Medical Officer he handed over the investigation to Mr. Muhammad Iqbal A. S. I. Incharge of the police station. On the same day Muhammad Iqbal recorded the statement of Bashir and Abdul Majid. He went to the scene of offence at Meerani Petrol Pump in Shikarpur town. No blood was seen at the scene of offence. He prepared the mashirnama in presence of mashirs Pathan and Anwar Ali. On the next day he received a letter from the Civil Hospital requesting for arrangement to be made for the dying declaration of injured Abdul Hakim, to be recorded. However, since the injured was unconscious the statement could not be recorded. But on the same day the doctor telephoned him that the injured had regained consciousness and was in proper senses to give the statement. Accordingly he recorded the statement of injured in presence of Dr. Ghous Bux Kakepota and compounder Muhammad Saffar. On 27-8-1975 he received the information that the injured had died in the hospital. He went over and prepared the mashirnama of the dead body in presence of mashir Zafarul Haq and Ghulam Abbas. He also prepared the Inquest Report in presence of the same mashirs. After the post-mortem was conducted the dead body was handed over to the relations. On the same day he arrested the appellants in presence of mashirs Pathan and Anwar Ali Shah. Upon interrogation appellant Wazir Ali led the police in presence of the mashirs to his own shop and produced blood-stained knife. On 1-9-1976 Muhammad Iqbal got the statement of P. Ws. Rashid Ahmed and Abdul Majid recorded before the Civil Judge and F. C. M.
Shikarpur. On 9-9-1975 he gave the papers to the S. H.
0. Who sent up the case for trial in the Court.
4. On 27-8-1975 Dr. Ghaus Bux, Medical Officer, had received the dead body of the deceased for post-mortem examination. On external examination he found one incised wound 3' (stitched) cavity deep over the right iliac lumbar region of abdominal cavity. The wound was stitched and was on front of the cavity. On internal examination he found stomach empty and abdominal cavity full of blood. In the opinion of the doctor the 'death of the deceased was caused due to shock and haemorrhage consequent to the injury mentioned above, which was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature. Earlier when injured Abdul Hakim was originally admitted in the hospital for treatment Dr. Nizamuddin had issued a certificate recording substantially the same particulars of the injuries. However, Dr. Nizamuddin could not be examined owing to his absence on account of Military training.
5. The prosecution examined in their evidence P. Ws. Abdul Haq, Bashir Ahmed, Dr. Ghous Bux, A. S. I.
Muhammad Iqbal, Ghulam Abbas Pathan, Muhammad Saffar and H. C. Abdul Rashid.
6. The defence of the appellants was of denial. Appellant Wazir repudiated motive for the Crime alleged by the prosecution and denied that he was in the service of Khuda Bux. He also denied the recovery of the blood-stained knife. The rest of the appellants also denied the allegation of their complicity in the commission of the offence and pleaded their innocence. The appellants did not however lead any defence.
7. The prosecution case rests on the ocular testimony of 3 witnesses, recovery of the crime weapon and dying declaration of the deceased. So far as the ocular testimony is concerned none of the 3 witnesses have supported the prosecution so as to connect the present appellants with the offence. P. W. Abdul Haq who was supposed to be accompanying the deceased and was himself the victim of the assailants, while describing the incident as narrated in the F. I. R. Refused to implicate the appellants by stating that the assailant's faces were muffled. He further stated that he was unable to say whether P. Ws. Bashir Ahmed and Abdul Majid saw the incident. He also denied that he had named the present appellants in the F. I. R. As the assailants. The witness was declared hostile by the A. P. P. In charge and was cross-examined: Similarly P. W. Bashir Ahmed while stating that he was attracted by a large crowd of people at the time of incident, stated that he was unable to identify 4 persons whom he saw going away from the scene. He only stated that he was told by bystanders that these persons have inflicted injury to Abdul Hakim. The most that could be said through him was that the complainant told him that he had a dispute with the appellants and therefore they had given injuries to them. But this statement has no value in so far as the complainant himself never testified to having told the witness what is being attributed to him. This witness was not even declared hostile although he was confronted with his 164, Cr. P. C.
Statement the contents of which he denied. In the cross-examination he watered down his statement further to say that the complainant had told him that he (complainant) suspected the appellants. The third witness, namely, P. W. Abdul Majid gave yet another version of what he saw at the scene when he reached there alongwith P. W. Bashir Ahmed. He stated that P. W. Abdul Haq told him that some unknown people had stabbed the deceased and him. This witness also disowned the correctness of his 164, Cr. P. C. Statement. This witness was neither declared hostile nor was cross-examined with reference to his 164, Cr. P. C. Statement. Thus the ocular testimony is of no value to the prosecution case. As regards the alleged recovery of the blood-stained crime weapon the position is not much better than the ocular testimony. Both mashirs namely, P. Ws. Pathan Khan and Anwar Ali Shah have not supported the prosecution in so far as the latter was not examined and the former stated in his deposition that appellant Wazir Ali had not led the police nor produced the knife from his hotel but the mashirnama was prepared at the police station. He stated that he saw the knife at the police station but it was not stained with blood. No value can be attached to the statements in the mashirnama that knife was recovered at the instance of the said appellant or that the same was stained with blood. This evidence is further rendered useless by the fact that knife does not seem to have been sent to the Chemical Examiner to determine the origin and nature of the blood stains if any.
8. This leaves the prosecution to fall back upon the evidence of the alleged dying declarations of the deceased to support their case. As already stated in the narration of the facts of the case H. C.
Abdul Rashid is stated to have recorded the statement of Abdul Hakim when he was brought in injured condition at the police station on 25-8-1975. This purports to be a section 161, Cr. P. C.
Statement recorded by the said witness and his deposition shows that it was produced in evidence as Exh.
37. Although under the law ordinarily a statement made during the investigation is not admissible in evidence but reliance was placed upon this evidence as a dying declaration under section 32(1) of the Evidence Act. The other dying declaration produced in the evidence as Exh. 16-A is supposed to have been recorded on 26-8-1975 at 8-45 p.m. While the deceased was admitted for treatment in the hospital. Both the statements do not bear the signature of the deceased. The absence of signature on the first statement can be explained in view of the provisions of section 161, Cr. P. C. But the absence on the subsequent statement recorded in the hospital is significant. It may be stated that the statement recorded by H. C. Abdul Rashid is a detailed one like any other police statement during investigation tallying with the version in the F. I. R. However in the cross-examination this witness stated that he did not record the F. I. R. Of Abdul Hakim because he was in a serious condition, so much so that while his statement was being recorded sometimes he was conscious and sometimes he. Was unconscious. He further admitted that at the time due to the severity of the wounds he did not speak clearly and appeared to be in serious condition. It was contended on behalf of the appellants that, in any case the so-called dying declaration of the deceased recorded by the H. C. Has not been proved according to law and cannot therefore be looked into. It was argued that mere production of a statement allegedly recorded by the Police Officer, without stating what the deceased told him, when such. Statement does not bear the signature of the deceased cannot constitute legal proof of the statement of the deceased. Reliance in this behalf was placed on Bachal v. State (1), (to which one of us was a party). In that case the prosecution in somewhat similar circumstances, relied upon a police statement as dying declaration allegedly recorded by the S. H.
0. But during the deposition the S. H.
0. Did not orally depose to the contents of dying declaration. In this connection it was observed by Abdul Hafeez Memon, J.
"Moreover, even the S. H.
0. Has not orally deposed to the contents of the dying declaration, which even Mr. Imdad Ali Agha, conceded, was necessary for proving the contents of the dying declaration. The S. H.
0. Has also not excluded the possibility of friends and relations of the deceased including complainant Ghulam Shabbir, who had already implicated the present appellant in the F. I. R. Being there."
' The case fully supported the learned counsel in his submission. In the present case also admittedly according to the prosecution case the complainant and P. W. Bashir Ahmed were present at the police station as they had taken the deceased there after the incident. In Ngh Mya Da v. Emperor (2), while discussing the meaning of proof of a written record of dying declaration Mackney, J. Made the following observations :- "Now, such statements must of course be proved whether they are written statements or verbal statements. If they are verbal statements, the persons who heard the deceased make the verbal statements must be examined on oath as witnesses and if a person at the time made a record of the deceased's statements he may refresh his memory by referring thereto (section 159 Evidence Act) or if he has no specific recollection of the statements made, he may, under section 160, Evidence Act testify to facts mentioned in the document if he is sure that the facts were correctly recorded by him. In the latter case, it seems to me the witness must still depose by reference to the document as to what the deceased said. I do not mean that it is necessary for the witness to read out his statement and for the Magistrate to record what the witness reads out, the witness may be said to testify to the facts mentioned in the document if he produces the document and swears that all that is written therein was actually stated by the deceased. If the document is thus put on record, it does not, so it appears to me, become in the strict sense substantive evidence, but it forms part of the testimony of the witness who recorded it."
' Ba U. J., while agreeing with the interpretation of section 32, Evidence Act by Mackney, J. Made his own exposition of law in the following words :- "If the deceased himself does not write the statement with his own hand or if the statement is not recorded from his dictation and signed
(1) PLD 1978 Kar. 710 (2) (1935) 37 Cr. L J 299 ' by him, it cannot in my opinion be the 'written declaration' of the deceased. It will simply be the record of the person who heard the deceased make that statement and cannot in consequence be used as substantive evidence. The witness can refer to it to refresh memory (section 159, Evidence Act)."
' Having regard to the aforesaid legal position and the circumstances of the case we are of the view that the prosecution has failed to prove the alleged record of the dying declaration dated 25- 8-1975 and also that the statements contained therein are of doubtful authenticity.
9. In the present case there is nothing in the evidence of H. C. Abdul Rashid that the written record tendered by him in evidence was the statement of the deceased recorded at his dictation or whether it was read over to him and admitted as correct. The witness stated in this behalf: "I had recorded the statement of Abdul Hakim at the police station when he came as an injured on 25-8-1975. I produce statement Exh. 37 because Abdul Hakim is dead."
' In the light of the principles enunciated in the aforesaid reported judgment with which we are in full agreement we hold that the so-called statement of flu., deceased has not been proved according to law and cannot therefore qualify as substantive evidence. In any case in view of the surrounding circumstances including the presence of persons admittedly inimical to the appellants no value can be attached to these statements as an authentic dying declaration of the deceased.
10. As regards the other statement of the deceased said to have been recorded on 16-8-1975 the circumstances on record may be stated. There is a letter from the A. S. I. Dated 26-8-1975 (Exh. 16 on record) which disclosed that on that day the police officer was informed by telephone by the Medical Officer that the condition of injured Abdul Hakim was serious. This letter appears to be originally addressed to the Head Munshi and. III Class Magistrate, Shikarpur requesting him to record the statement of the injured in view of his serious condition. But it seems the addressee's name was struck off and instead the name of the addressee was changed to that of Medical Officer R. B. U. J. Civil Hospital. It is not known in what circumstances the police officer instead of writing to the Magistrate to record the statement requested the Medical Officer to do so, which to say the least is unusual and surprising. Dr. Ghous Bux in his deposition testified that the injured was in perfect senses although he was on the verge of death. He, however, admitted that he did not mention this fact in the statement. The witness stated that the statement bears the signatures of ward-boy Maqsood Ahmed and Muhammad Saffar. He has further disclosed that letter Exh. 17 of the same date addressed to the Medical Officer, Civil Hospital Shikarpur from the A. S. I. Was received by Dr. Nizamuddin at 5-30 p.m. On which he noted down that the injured was not able to give any statement at that time. In this iletter the A. S. I. Had enquired from the Medical Officer whether the deceased was in senses to make statement or not. Dr. Ghous Bus in answer to a question in the cross-examination admitted that relations of the injured were also present at the Hospital. With regard to the absence of the signature of the deceased on the statement the witness stated that he cannot say whether the injured was in a position to give his signature. The perusal of the so-called dying declaration of the deceased recorded by the Doctor shows that it is a sketchy statement lacking in details written in Sindhi language which translated in English reads as follows ' Name.-Abdul Hakim son of Abdul Karim Pirzada "I have been inflicted knife injuries by Buriors, namely, Khalil, Wazir and Aziz, Nazir Shaikh was also with them. I know them. Statement was given in presence of the following mashirs . (Sd.)
Maqsood Ahmed and M. Safar (Sd.)
26-8-1975. 8-45 p.m."
' P. W. Muhammad Saffar the compounder in whose presence the statement of the deceased was stated to have been recorded said in his evidence that the deceased had given the names of the assailants and that the statement bears his signature. In the cross-examination, however, he stated that he does not exactly remember whether the deceased was unconscious. He stated that injured persons are always admitted in the surgical ward which was in charge of the Medical Superintendent. At the relevant time Dr. Nizamuddin was the in charge of the ward. He has admitted that the relations of the deceased were also present. He admitted in the cross- examination that he did not bear the names obviously referring to the names of the assailants but he signed the declaration because at that time he was working in the ward. Thus the witness by his admissions destroyed the effect of his testimony and reduced its value completely. As against this evidence the Investigation Officer Mr. Muhammad Iqbal gave as entirely different version as to 'the recording of the dying declaration in question. He states that on the second day of the incident he received letter from the Civil Hospital that the dying declaration of the injured be recorded. As he was unconscious his statement could not be recorded. On the same day however, the doctor telephoned him saying that the injured is in proper senses to give the statement. He then recorded the statement in presence of Dr. Ghous Bux and Compounder M. Saffar which he identified to be Exh. 16-A. This is a serious contradiction in the prosecution evidence which has remained unexplained. While on the one hand the doctor claimed to have recorded the dying declaration Exh. 16-A, the Investigation Officer asserted that it was he who recorded the statement. There is nothing in the record as to in whose handwriting the statement in question is recorded and no attempt was made to prove the hand writing. It was pointed out by the learned counsel for the appellants that the statement, in addition to lacking in details was in conflict with the prosecution story inasmuch as in the statement active part has been assigned to all the appellants for inflicting knife injuries whereas there was only one injury on the deceased. Due to the these contradictions it is utterly unsafe to place reliance on the second dying declaration also. Additionally the other circumstances pointed out also cast doubt on the veracity of the prosecution evidence. It is admitted that no blood was found at the scene of offence although the deceased is said to have fallen down on the ground after receiving the injury the blood from which had soaked his clothes.
Appellant Wazir Ali at the time of his arrest was not found to have any blood stains on his clothes nor had he or other appellants produced any blood-stained clothes worn by them at the time of the incident.
11. For the foregoing reasons none of the pieces of evidence relied, upon by the prosecution are worthy of credit for supporting the conviction of the appellants in a capital charge. The learned counsel appearing of the state, in view of these circumstances, rightly did not support the conviction. In the result we allow the appeal and set aside the conviction and acquit the appellants. They shall be set at liberty forthwith if not required in any other case.
12. Foregoing are the reasons for the short order by which we had allowed this appeal.