B. G. N. KAZI, J.-Muhammad Aslam son of Amir Khan who was convicted under section 326, P. P. C.
And Altaf Hussain son of Zahoor Muhammad, who was convicted under section 326 read with section 34. P. P. C. And each sentenced to suffer R. I. For ten years and to pay a fine of Rs. 5,000 or in default to undergo further R. I. For two years, have filed separate appeals against the aforesaid convictions and sentences. Notices were also issued to the appellants for enhancement of sentence. This order will dispose of Cr. Appeals Nos. 194 and 203/77 and Cr. S. M. Revisions Nos. 66-A and 181 of the same year.
2. The case of the prosecution against the accused appellants briefly stated is as under:- Nawab Khan son of Dhulla Khan, who was an armed Guard, employ--ed by K. D. A. Used to reside with his family in a house in Manzoor .Colony, Mahmudabad, Karachi. His daughter Mst. Tanzeem, was a student of the Noor-e-Islam School. Mahmudabad No. 4, which she used to attend in the second shift from 12-45 p. m. To 5 p. m. She used to go to school and come back therefrom on foot.
She complained to her mother and father that the accused appellants tease her on the way. The deceased remonstrated with the accused but they did not heed his protest. On 31May, 1976. When the deceased was returning from the place of his employment he came across the two accused near Mohammadi Hotel, in Liaquat Ashraf Colony. Accused Muhammad Aslam gave the deceased a hatchet blow whereas accused Altaf Hussain, who was armed with pistol, shot at him. The pistol shot missed the deceased but due to the injury inflicted with hatchet he fell down. The incident was witnessed among others by Ghulam Abbas, Muhammad Baksh Soomro, Mumraiz Khan and Saeed Umer. They picked up the deceased and took him to Mahmudabad Police Station, where he lodged F. I. R. Which was recorded by A. S. I. Muhammad Ibrahim. The deceased who had injuries wasst referred to the Jinnah Hospital, where he was attended to by Dr: Abdul Kadir Sheikh, the Medical Officer, incharge of Casualty Depart--ment. The deceased succumbed to the injuries in the Hospital on 1st June 1977. Autopsy on his corpse was conducted at the Civil Hospital, Karachi, by Dr. Ashfaq Hussain Zaidi, on 1st June 1976. A. S: I. Muhammad Ibrahim, who started the initial investigation, inspected the scene of offence on the very day and prepared mashirnama in presence of mashir, Muhammad Ashraf. He recorded the statement of witnesses, Imam Bux, Ghulam Abbas, Mumraiz Khan, Saeed Umer, Muhammad Ashraf, Muhammad Shafi, Mst. Tanzeem Akhtar and Mst. Manzooran Begum. A search was made for the accused who were located at Malir Halt on 1st June 1976, at about 6 p. m. And put under arrest in presence of mashirs, Mumraiz Khan and Saeed Umer. Since the deceased had succumbed to the injuries on 1st June 1977, A. S. I.
Muhammad Ibrahim handed over the papers of the case for further investigation to Zafar Iqbal S. H. O. Who visited the Jinnah Hospital and prepared the inquest report. The dead body of the deceased was sent for post-mortem examination to Civil Hospital, Karachi. After completion of the investigation the two accused were sent up to stand their trial for offence punishable under sec-- tion 302/34, P. P. C.
3. Appellant accused Muhammad Aslam in his statement denied the alleged teasing of Mst.
Tanzeem Akhtar and the allegation that he had given a hatchet blow to deceased Nawab Khan, or that co-accused Altaf Hussain had fired a pistol shot at the deceased. He denied the allegation that he had been arrested at Malir Halt and stated that he had been sent for at Mahmudabad Police Station on 1st June 1976 and arrested. He also denied having produced hatchet from his house on 7th June 1976 and stat--ed that P. W. Mumraiz Khan had produced a hatchet before the Police at the police station. He further stated that he had been falsely implicated in the case at the instance of Mumraiz Khan who is his distant relative and has a dispute of long-standing with his family. Appellant accused, Altaf Hussain similarly denied the alleged teasing of Mst. Tanzeem Akhtar and his participation in the assault on Nawab Khan deceased. He also denied his arrest at Malir Halt and stated that he was sent for and arrested at the police station. He also alleged false implication in the case at the instance of Mumraiz Khan who had employed him but had refused to pay him his wages. He further stated that he had complained to father of Muhammad Aslam who had approached Mumraiz Khan who was annoyed and had threatened that he would not spare him.
4. We have no hesitation in accepting the finding of the learned Sessions Judge that Nawab Khan died due to the injuries inflicted on him. Dr. Abdul Kadir Shaikh who had examined the injured soon after the incident found the following injuries on his person
(1) A lacerated wound 2" x --" x bone deep on head.
(2) Swelling 1' x --" on the left upper arm.
(3) Abrasion 1--- x ----- on left elbow.
He was of the opinion that the injuries had been caused by means of a blunt weapon.
5. After the death, post-mortem examination of the body was made by Dr. Ashfaq Hussain Zaidi, who found the following injuries:-
(1) A stitched wound, with five stitches, in the middle of the head, transverse in direction, situated 3f from the eye-brows. On remov--ing the stitches, it was found that the injury was of incised nature and showed contusion on the margins. It measured 2" x 1/3--- x skin deep.
(2) A stitched wound, with four stitches, in the middle of the head, transverse in direction, situated - -" behind injury No. 1, and parallel to it. On removing stitches, the injury was found of incised nature and showed contusion along the margins. It measured 1--" x --" x skin deep.
(3) A contused abrasion 1--" x --" on the left upper arm, above part, lateral side.
(4) Contused abrasion 2" x 1--" on the back of left elbow joint.
6. The difference in the statements of the injuries found by the two doctors was explained by Dr. Ashfaq Hussain Zaidi, by stating that the injury sustained by the deceased on his head had been stitched in the process of treatment and the nature of the injury had suffered change.
7. He expressed his opinion as under:- "The shape of the wound may change in the process of cleansing or operation. An injury of the nature of lacerated wound can be changed to that found on the deceased if any process of operation or cleansing had taken place. I cannot say if the deceased had undergone process of operation at the site of injuries. The stitches over the wound suggested that the wounds had been cleansed."
8. The defence plea that the deceased whose post-mortem examination was made by Dr. Ashfaq Hussain Zaidi, was not Nawab son of Dhulla Khan, the victim in the case, was rightly not accepted by the learned Sessions Judge as there was the evidence of Mumraiz Khan, a near relation and Sher Khan the brother of the deceased, who had identified the dead body before the post-mortem examination at the Civil Hospital The evidence of these witnesses was not challenged in cross- examination There was also the corroborative .Testimony of Police Constable, Allah Dad Rajput (P.
W. 5) to the effect that after post-mortem examination the dead body was handed over to Mumraiz Khan and Sher Khan.
9. Before assessing the evidence against each of the two appellants, it is observed that of the four alleged eye-witnesses, namely, Imam Bakhsh Soomro, Mumraiz Khan, Saeed, Umer and Ghulam Abbas, the carried Sessions Judge did not rely upon the evidence of Mumraiz Khan and Saeed Umer, we have no hesitation in accepting his assessment of the evidence of these two witnesses as undoubtedly they are interested witnesses. Mumraiz Khan and the deceased hail from the same village in the Punjab. This is clear from the evidence of Mst. Tanzeem Akhtar and her mother Mst.
Manzooran Begum, daughter and were of the deceased. Mst. Manzooran Begum has stated that they did not observe purdah .From him. Not only that but it is clear from the record of the case that Mumraiz was actively concerned and was assisting the police throughout the investigation. He is stated to have pointed out the accused, at Malir Halt, to the Police and was the Mashir of arrest. He was also the Mashir of the belated recovery of hatchet from accused Aslam after 7 days. He. Is the person who is stated to have taken the deceased to the Police Station and to the Hospital. Though Mst. Manzooran has denied the fact Mst. Tanzeem Akhtar admitted that he had taken them to the Hospital. The accused have alleged his enmity with them. Saeed Umer is the employee of Mumraiz Khan and works as cleaner on his truck.
10. Admittedly, Mumraiz resides in Liaqat Ashraf Colony and he and Saeed Umer were to their admission chance witnesses who happened to pass by the scene of offence and on seeing a crowd had stopped to have a look. It has been contended by Mr. Usman Ghani, the learned counsel for defence that it must have taken very little time to inflict the injuries shown to have been received by the deceased and since the witnesses came after the crowd had collected they could not have seen the actual giving of blows to the deceased. Be that as it may for the reasons given, we agree with the learned Sessions Judge, that the evidence of the two witnesses is not reliable, specially as their names do not transpire in the F. I. R. Which has been treated as dying declaration.
11. The first information report said to have been lodged by the deceased himself which has been treated as his dying declaration is of great importance to the prosecution. It is well-settled principle of apprecia--tion of evidence that dying declaration like statement of interested witness requires close scrutiny. It was so held by Supreme Court in Tawaib Khan and another v. The State (PLD 1970 SC 13).
12. In the decision of this Court in Cr. Appeal, Ghulam Hussain v. The Stare (PLD 1974 Kar. 91) reliance was placed on aforementioned decision of the Supreme Court and the observations of Sajjad Ahmed, J. In that decision which reads as under, were quoted "It is difficult to lay down a rigid rule that a person who is injured and is under apprehension of meeting his death, would suddenly be gifted as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age old habits and deep-rooted rancours and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty?. It is for this reason that a close scrutiny of the dying declarations like the statements of interested witnesses become absolutely necessary. The maxim "falsus in uno faslus in omnibus" has all along been discarded by the Courts in this country."
13. In another decision of this Court in Cr. Appeal Amanullah and 4 others v. The State (PLD 1978 Kar. 792) reliance was placed on the observa--tions of Dorab Patel, J. In Zarif Khan v: The State (PLD 1977 SC 612), that dying declaration is weaker type of evidence than evidence subjected to cross-examination.
14. According to the prosecution, deceased, Nawab Khan, had lodged the F. I. R. With A. S. 1, Mohammad Ibrahim on 31st May, 1976 at 3.50 p.m. In which the date of occurrence was shown to be 31May, 1976 at 2.45 p.m. And the offence was described to be one under section 307/34, P. P. C.
The place of occurrence was shown to be near, Muhammadi Hotel, Liaquat Ashraf Colony No. 2, at a distance of of miles towards north of the Mahmoodabad Police Station. The F. I. R. Reads as under:--- "Oral Complaint.
I reside at the above address alongwith my family and am employed in K. D. A. About one week back, two boys namely Mohammad Aslam and Altaf Hussain had teased my younger daughter while going to school. Today at about 2.45 1 was going to my house after being free from my duty, when I reached near Muhammadi Hotel Liaquat Ashraf Colony, No. 2, these both boys met me there and I asked them as to why they teased my daughter. Upon this, they both caught hold of me and then Mohammad Aslam attacked me all of a sudden with hatchet due to which I have received injury on my head and I got injured and then Altaf took out pistol and fired at me and the bullet missed. Imam Bux Soomro and Ghulam Abbas, of the Mohallah have seen this incident. Therefore, I have come to report.
Heard the statement and admitted it to be correct.
(Sd.) Illegible."
There is a note by A. S. I. Mohammad Ibrahim certifying that the statement of complainant was recorded word by word read over to the complainant, who admitted. It to be correct and signed.
The note also mentions that the body of the injured, complainant was examined and hatchet injury on the head and mark of injury on the arm were found and, therefore, the complainant was given letter and sent to the Jinnah Hospital for treatment.
15. It may be remarked here that on behalf of the defence a plea was raised that on receiving the injury on the head the deceased could not have made the report at the Police Station, which had been manipulated by Mumraiz Khan. The plea is based on the reply to a question put to Dr. Abdul Kalir Shaikh and Dr. Ashfaq Hussain Zaidi, whether after receiving the injury on the head the deceased would have become unconscious. Both the doctors stated in reply that it was probable that the injured might have gone unconscious immediately on having received injuries.
16. The learned Sessions Judge repelled the plea mainly on the ground that the report was made very soon after the incident to A. S. I. Mohammad Ibrahim (P. W. 8) who had confirmed that the report was made to loam and had been read over to and signed by the deceased. He also observed that report of the incident was made at 3.50 P.m. And Dr. Abdul Kadir had examined the injured at 6.10 p.m. There was interval of more than two hours between the making of report andst the examination of the injured and further that the medical officer's opinion indicated only probability of victim having gone unconscious on receiving injury on the head and he had no reason to disbelieve the testimony of A. S. I. Mohammad Ibrahim. It was further remarked by the learned Judge that if as alleged the report had been dictated by Mumraiz Khan, he would have shown himself as eye-witness, but in the report there is no mention about his being an eye- witness.
18. The learned Sessions Judge, therefore, held that there seemed no doubt that the report was lodged by the deceased himself when he was in proper senses and his condition had deteriorated gradually, We have no reason to differ from his assessment of the evidence on the point.
19. The motive as indicated by evidence of P. Ws., Mst. Tanzim 2nd Mst. Manzooran Begum and the dying declaration is rather weak. There is nothing on record to suggest as to why the two appellants even if they had been guilty of teasing the daughter of the decease would desire or intend his death. However, weakness or even apparent absence of motive could hardly make any difference if there is reliable and credible evidence to prove that the accused had committed the offence. The evidence against each of the appellants has, therefore principles to be sifted and appreciated in accordance with well-establishes principles.
20. The F. I. R. Lodged by the deceased which has been treated as dying declaration has to be considered as, evidence only corroborated by reliable and credible independent evidence in materia particulars.
21. Although according to prosecution four alleged eye-witnesses Mumraiz Khan, Saeed Umar, Ghulam Abbas, and Imam Bux Soomro had seen the incident, Imam Bux Soomro was not examined and was given up on the ground that he had been won over. The learned Sessions Judge rightly discarded the evidence of Mumraiz Khan, and Saeed Umer as being unworthy of credit for reasons already given. There is only the evidence of Ghulam Abbas who is a natural witness being a, near neighbour of the deceased which can be considered as worthy of credit. No allegation of any sort as to why he would falsely implicate the appellant has been made in his examination or otherwise.
The dying, declaration of Nawab Khan as corroborated by his evidence and any circumstantial evidence has to be considered in the case of each appellant.
22. With regard to accused appellant, Mohammad Aslam there is specific mention in the dying declaration about his giving hatchet blows to Nawab Khan which is fully supported by evidence of P, W, Ghulam Abbas and the evidence of medical experts about injuries. There was also the evidence of recovery of hatchet from the house of accused Mohammad Aslam of P. Ws. Mumraiz Khan and Zalfar Iqbal, S. H. O. However, as observed by the learned Sessions Judge, the recovery has taken place on 7th June, 1976 whereas the accused was arrested on 1June, 19'76 and since as already stated the learned Judge has not relied upon the testimony of Mumraiz Khan, who was not considered an independent person and further since there was no bloodstains on the hatchet the learned Sessions Judge, rightly did not give any weight to the evidence of recovery in respect of hatchet.
However, the ocular evidence of Ghulam Abbas, and the dying declaration of the deceased and also the evidence with regard to the motive though of a weak nature is considered sufficient to sustain the conviction of accused Mohammad Aslam.
23. With regard to accused Altaf Hussain, the only independent eye-witness, namely, Ghulam Abbas, has not assigned any active part in the incident to him. All that he has stated with regard to the accused Altaf Hussain, is as under:- "Accused Altaf Hussain, present in Court was available there. H~ was found armed with pistol."
This evidence of P. W. Ghulam Abbas, cannot be considered to be corroborative of the statement of the deceased in the dying declaration. It is significant to note that the deceased in the dying declaration had used the following words:--st "I got injured and then Altaf Hussain, took out pistol and fired on me and the bullet missed."
It is, therefore, abundantly clear that in the dying declaration the position had been taken that the hatchet blow was given on the head of the deceased first and after that Altaf Hussain was alleged to have taken out a pistol and fired at him. Since P. W. Ghulam Abbas has clearly corroborated the statement in the dying declaration by stating that he had seen accused Mohammad Aslam, giving hatchet blow on the head of the deceased, if the dying declaration is accepted to be true he should have witnessed the firing of the pistol by accused Altaf Hussain, which took place after the infliction of the hatchet injury However. P. W. Ghulam Abbas whose statement in respect of accused Altaf has already been quoted above did not attribute any overt action to Altaf Hussain and has definitely not supported the dying declaration wherein it is stated that Altaf Hussain fired the pistol at the deceased and missed.
24. While discussing the question as to the nature of offence committed by the accused the learned Sessions Judge, came to the conclusion that the incident was unpremeditated and though the accused were carrying arms, there was no evidence that they were waiting for the accused for assaulting him. He further observed that if it had been their intention to cause the death of the accused they would have selected a better spot for the assault as the scene of offence and the time of the incident were such that they were sure to be seen and detected by passersby. The learned Judge, therefore, rightly came to the conclusion that the element of intention for causing death seemed to be lacking. Relying on the decision of the Lahore High Court, in Anwar and others v. The State (PLD 1965 Lah. 378) in which conviction under section 302/34, P. P. C. Was altered to one under section 325/24, where it was found that the accused had not intended to cause death, the learned Judge, found the accused to have committed offence under section 326/34, P. P. C. The learned Judge, in the case against accused Altaf Hussain, accepted the version with regard to his having made attempt by shooting at the deceased by means of a pistol and missing him. He was therefore, of the opinion that Altaf Hussain had the intention of assaulting the deceased and therefore, he held Altaf Hussain vicariously liable to punishment for the offence under section 326.
25. It may at this place be mentioned that it is contended that since the sharp side of the hatchet had not been used by accused Mohammad Aslam the offence committed was punishable under section 325, P. P. C. And not section 326, P. P. C. However, since the weapon used was a deadly weapon, namely, the hatchet, in our opinion the learned Sessions Judge, rightly considered the offence to fall under section 326, P. P. C.
26. As already stated since the statement in the dying declaration with regard to the accused Altaf Hussain, having fired the pistol was not supported or corroborated by the evidence of Ghulam Abbas, no overt act can be attributed to accused Altaf Hussain. It is further observed that there is no evidence with regard to recovery of the pistol from possession of accused Altaf. Since it has already been held that there was no common intention of causing the death, and the two accused, were not lying in wait for causing injuries to the deceased and since no overt act can in the circumstances be attributed to accused Altaf Hussain, we consider the case against him not to be free from doubt. His appeal is, therefore allowed and the conviction set aside. He is acquitted and he should be released forthwith if not required in any other case. With regard to accused Mohammad Aslam, for the reasons already given we find that his conviction under section 326. P. P.
C. And the sentence awarded to him is in order. The appeal filed on his behalf is dismissed.
The notice with regard to S. M. Revisions No. 66-A and No. 181/77 are under the circumstances hereby discharged.