This is an appeal preferred by Khurshid Ahmed Shah, Zahoor Ahmed Shah, Riaz Hussain Shah, Sadar Din Shah and Ghulam Sarwar from the judgment dated 26-9-1978 passed by the Additional Sessions Judge, Multan, at Vehari, whereby he convicted the appellants of an offence under section 302, P. P. C. Read with section 149, P. P. C. And sentenced them each to undergo imprisonment for life and to pay a fine e Rs. 5,000 or in default to undergo further rigorous imprisonment for one year. The appellants were convicted also under section 148, P. P. C. And sentenced to undergo rigorous imprisonment for one year each. The sentences were, however, ordered to run concurrently. It was further ordered that the amount of the fine, if realized, shall be paid to the legal heirs of the deceased Mubarik Ali Shah.
2. The story, according to the prosecution, which gave rise to the case against the appellants is that Mubarik Ali Shah deceased accompanied by Lal, P. W. Was going from his village Noor Shah, to the Railway Station of that name on 25-8-1975 at 7-30 a.m. In order to attend the Court at Malsi to pursue Case No. 74/75 under section 307, P. P. C. Etc. Instituted by one Rashid Ahmad against some of the appellants and others. Abdul Rahman complainant and Nafar Hussain Shah were following him some distance behind. When he was passing by the village, Khursl Ahmed Shah, Zahoor Shah, Riaz Hussain Shah, Sadar Din Sh and Muzammil Shah, all armed with dangs and Ghulam Sam with pistol emerged from a cotton field where they were lying concealed. Muzammil Shah and Khurshid Shah gave a lalkara that Mubarik Ali Shah would not be allowed to escape alive because he was prosecuting the case. Ghulam Sarwar then held out his pistol and warned that no one should come to rescue Mubarik Ali Shah. Mean while, the rest of the accused gave dang blows to Mubarik Ali Shah who fell on the ground whereafter further injuries were inflicted on him. The hue and cry raised by the P. Ws. Brought Ghulam Qadir Bhatti an Hakim Muhammad to the scene. Ghulam Sarwar fired from his pistol which missed. On this Hakim Muhammad, who bad brought a gun fired hitting Muzammil Shah. The occurrence was seen besides the complainant, by Nafar Hussain, Lal, Hakim and Ghulam Qadir but none, of them could intervene out of fear. The accused then lifted Muzammil. Shah and managed to escape. Mubarik Ali Shah in the injured condition was taken to the Civil Hospital, Malsi. On receipt of a massage from the hospital, Malik Ghulam Muhammad, A. S. I. Went there and recorded the statement of Abdul Rehman's (Exh. P. C.) for a case initially under sections 307/149, and 148, P. P. C. On the basis of which formal F.I.R. Was later recorded at the Police, Station. At the instance of the Police officer, the dying declaration of Mubarik Ali Shah was also recorded at the hospital by the Assistant Commissioner Syed Sajjad Hussain Naqvi at 11 a.m. As no Medical Officer was available there, he was sent to Multan but in the way he succumbed to his injuries later the same day. Muzammil Shah also died in the result of his injuries.
3. The motive given in the F. I. R. Is strained relations on account of the aforesaid criminal case under section 307, P. P. C. Etc., going on between the parties which the deceased was pursuing on behalf of the complainant party.
4. In the course of the investigation the four Dangs, namely, P. 4 from Khurshid Shah, P. 5 from Zahoor Shah, P. 6 from Riaz Hussain Shah and P. 7 from Sadar Din Shah and Pistol P. 8 from Ghulam Sarwar were recovered. None of the sticks recovered was blood-stained. No empty or live cartridge was also recovered. The gun used by Hakim P. W. Was the .12 bore (D. B.) licensed gun (Exh. P. 9) belonging to one Muzammil Shah, father of Abdul Rehman's complainant. It was produced before the police by Hakim on 18-9-1975. Blood-stained earth was removed from only one place, i.e., where Mubarik Ali Shah had fallen. No blood-stained earth was removed from the spot where Muzzammil Shah is said to have fallen. The-plan prepared does not even show that spot.
5. The post-mortem examination of Mubarik Ali Shah deceased conducted on 26-8-1975 showed the presence of as many as 24 injuries on his person. 11 of the injuries, mostly contused wounds are on the eyes and the head region. The following of injuries were found to be grievous, caused by blunt weapon and sufficient in the ordinary course of nature to cause death: "Injury No. 2.----Multiple laceration and contusion in an area of 8 cm x 4 cm on the right upper lid, lower lid of the eye and the right side of the nose. The eye-ball showed multiple contusion and haemorrhage with intra haemorrhage.
Injury No. 3.---A contused wound 3 cm x 0.2 cm s bone deep on the lower lid of the left eye. The left eye was ruptured and lacerated.
Injury No. 19.---Multiple contusions fused into each other in an area of 30 cm x 18 cm on the inner surface of the left upper and forearm and back of left fore-arm. The left elbow was fractured.
Injury No. 20.---A contused wound 1 cm x 1.5 cm into bone deep on the outer surface of the left fore-arm 6 cm above the wrist. Underlying bone was fractured.
6. The post-mortem examination of the body of Muzammil Shah conducted by the same doctor the same day disclosed the presence of as money as 8 injuries which included two wounds of entry caused by gun-- shot and the rest by blunt weapon. The gun-shot injuries and two others were found to be grievous and independently sufficient to cause death in the ordinary course of nature.
Besides the Medical Officer, the prosecution examined four of the eyewitnesses, namely, Abdul Rehman's complainant (P. W. 7), Hakim (P.W.8). Ghulam Qadir (P. W. 9) and Lal (P. W. 11). The recovery of the crime weapons from the accused party was proved by Muhammad Ramzan (P.W.10). The prosecution also examined A.S.I. Malik Ghulam Muhammad (P. W. 4) who had recorded the statement of Abdul Rehman's (Exh. P. C.), Saeed Ahmed Shah, S. D. P. O. (P. W. 12) and Muhammad Amin, A. S. I. (P. W. 14) who both investigated the case. The other witnesses were given up by the prosecution as being unnecessary or won over.
8. The appellants denied the prosecution allegations. They asserted that the dying declaration was false and concocted and fabricated at the instance of the complainant on account of enmity. They stated that there was enmity between Muzammil Shah (deceased-accused) and Mubarik Ali Shah that the occurrence was a matter between the two and that they had been falsely implicated.
They: appellants also gave in their respective statements made under section 342, Cr. P. C. The reason for the enmity. Ghulam Sarwar stated that he did not know anything about the occurrence, that at the relevant time he was in the Court compound at Malsi where he had gone to attend the Court of Assistant Commissioner and that he had been named on account of enmity between the parries.
9. The learned Additional Sessions Judge who held the trial, believed the prosecution evidence. He particularly dealt with the dying declaration and repelled the objections taken by the defence that its recording was not according to law and that it had been recorded after consultation. Another objection taken to the dying declaration on the ground that it bore the thumb impression and not the signature of the declarant who was a literate person being an Advocate, was rejected on the evidence that his eyes had been bandaged and there were injuries on his arms which made him unable to sign the document. He found the dying declaration corroborated by the ocular evidence and the recoveries of the weapons and as such held the case proved against the appellants.
Taking, however, a lenient view on account of their young age and as regards Sarwar the part ascribed to him in the occurrence, he awarded them the lesser penalty.
10. The relationship in which the parties stand, may be brought out. Khurshid and Zahoor Ahmed Shah appellants are real brothers whose father Dildar Hussain is brother of Madad Ali Shah the father of Riaz Hussain and Sadar Din appellants. Muzammil Shah (deceased-co-accused) was a brother-in-law of Zahoor Shah. Ghulam Sarwar, appellant, however, belongs to another village and bears no relationship with the other appellants, though he was co-accused in the case under section 307, P. P. C. Madad Ali Shah, father of Riaz and Sadar Din appellants is the maternal uncle of Mubarik Ali Shah deceased. Abdul Rehman's complainant is the cousin and brother-in-law of Mubarik Ali Shah deceased. He (complainant) is the son of Muzammil Shah whose gun had been used in the occurrence by Hakim. Ghulam Qadir (P W. 9) is a tenant of one Ghaus Muhammad Shah maternal uncle of the complainant. Lal, according to the dying declaration was a servant of Mubarik Ali Shah deceased though he denied the same in his own evidence.
11. The existence of bad blood between the parties is asserted on both sides. According to the prosecution this was on account of the case under section 307, P. P. C. Subsisting between the parties at the relevant time. Riaz Hussain Shah, appellant also made a long statement to show the existence of enmity and indeed the appellants had made such enmity the motive for their involvement falsely. In view of the admitted bad relations existing between the parties, the facts of the occurrence as deposed to by the witnesses need a very careful examination.
12. The prosecutionversion of the occurrence is given by Abdul Rehman's in his F. I. R. And by Mubarik Ali Shah deceased in his dying declaration (Exh. PE/2) Abdul Rehman's version is already reproduced in paragraph 2 above. The narration in the dying declaration is that the deceased was going to the Railway Station in connection with the prosecution of the case against Muzammil Shah (accused-deceased) etc. That he was accompanied by his servant Lal who was carrying his bag, that the accused party armed with dangs (that of Khurshid being metal shod) and Sarwar with pistol launched the attack at which he started to run but he slipped and fell down, that he beseeched his assailants not to harm him as he would compromise the case of which the assailants told him that they would not mind one more case, that in the meantime Ghulam Qadir also came but Sarwar held out his gun shouting that no one should come near, whereupon all the assailants, except Sarwar inflicted blows with dangs on him. The narration goes on that Riaz Hussain caused injuries to and crushed the deceased's eyes whereupon he closed his eyes and thought that Riaz, Khurshid and Zahoor gave blows at his eyes, that he received blows on his arms and shoulders also and that Muzammil Shah (accused-deceased) was repeatedly saying that instead of compromise he would rather face a case of his (deceased's) murder. According to the deceased, other people also came at his hue and cry who engaged the assailants in a fight but as he could not see he could only hear the voices among which he recognized those of Ghulam Hussain and Muhammad Hanif after which he lost consciousness and regained it in the hospital.
13. The two versions thus differ from each other in some particulars. The complainant made no mention of the deceased having be searched his assailants to spare him and the retort he received from them. He did not speak of injuries having been directed at the deceased's eyes nor did he speak of the arrival of Ghulam Hussain and Muhammad Hanif. On the other hand there is no mention in the dying declaration of the arrival of Hakim and the shot fired by him. This may be on account of the deceased becoming unable to see and ultimately losing consciousness. The difficulty is that the ocular witnesses did not stick to their statements made before the Police but in their evidence tried to fill in the omissions and bring their testimony in accord with the dying declaration. They were promptly confronted and contradicted. Abdul Rehman's complainant even spoke of the arrival of Muhammad Hanif and Ghulam Hussain which he had omitted to do in the F.
I. R. He was duly confronted and contradicted. If Abdul Rehman's had indeed seen the occurrence there is no reason why such discrepancy would have arisen. The other witness, i.e. Nafar Hussain who had been accompanying the complainant was given up as unnecessary while Ghulam Hussain and Muhammad Hanif who though not mentioned in the F. I. R., bad according to the dying declaration come on the scene, were given up as having been won over by the appellants party.
14. There are other factors also which create a doubt whether the occurrence had been seen by the eye-witnesses or had taken place in the manner described by them. Muzammil Shah, according to the F. I. R. Received one fire-arm injury at the hands of Hakim, P. W. But according to the medical evidence bad suffered the following injuries.
"(1) A contused wound 10 cm x 1 cm x bone deep on the left side of the head 4 cm from the left ear.
(2) Contused wound 4 cm x 1 cm x bone deep on the back of the head 2 cm behind Injury No. 1.
(3) Contusion 5 cm x 3 cm on the neck behind the left ear.
(4) Contused wound 6 cm x 1 cm on the right side of the head 5 cm from the right ear.
(5) Contused wound 3 cm x 0.5 cm x bone deep on the back of the head on right side 5 cm from right ear.
(6) Lacerated wound 4 cm X 2.5 cm x going deep on the top of the right shoulder.
(7) Contused area 6 cm x 6 cm the right side of the back of chest.
(8) Lacerated wound 6 cm X 5 cm x abdominal cavity deep on the left side of back over the kidney area 2 cm from the midline bone was surrounded by small multiple fire-arm pellet wound which the blood was oozing."
Two of the injuries and not one, i.e., injuries Nos. 6 and 8 had been caused by fire-arm. There is no explanation in the F. I. R. For the second fire--arm injury nor for the other injuries not caused by fire- arm. Abdul Rehman's stuck to his version of one shot in his evidence by stating "Ha kim P. W. Fired a shot at Muzammil Shah who fell down at the spot". But the other eye-witnesses spoke of two shots.
Hakim spoke of having fired twice. He stated "Sarwar accused now present in the Court fired at me and he did not hit me because I sat down on the ground. I fired which hit Muzammil Shah on his shoulder. He turned his position and then I fired again which hit on his back on which he fell down".
In reply to a question in the cross-examination he explained "I fired at Ghulam Sarwar which hit Muzammil Shah. Muzammil Shah deceased was standing near Ghulam Sarwar when he fired at me. Muzammil Shah deceased had no gun . . . . . Lal had also stated "Sarwar accused then challenged that he would at spare any body who dared to come forward on which Sarwar accused made fire at Hakim P. W. But it missed the target. Then Hakim P. W. Fired at Sarwar with his gun but it hit against the body of Muzammil Shah. Muzammil Shah turned to bit Mubarik Shah with a stick Hakim fired another shot which hit Muzammil Shah who fell down." This witness too had spoken of only one shot in his statement before the Police with which he was duly confronted. These statements go to show that the fire had been aimed at Sarwar but the same having missed him had hit Muzammil Shah who was standing nearby. The explanation may be acceptable for the first shot but not for the second one which cannot be said to have been aimed at Sarwar. The firing was from a close range as a wad had been recovered from the abdominal cavity of Muzammil and as such it is not possible to believe that both the shots had only accidentally hit Muzammil Shah though not aimed at him. Since Muzammil did not himself have a fire-arm, the eye-witnesses had to introduce a pistol shot by Sarwar to justify the firing by Hakim. The explanation given by Lal that the second shot was fired at Muzammil because the latter had "turned to hit Mubarik with a stick" can hardly be believed because Muzammil was not likely to wield a blow after the receipt of the first gunshot injury, be it injury No. 6 or 8 as both the injuries had been found sufficient to have caused death independently.
15. In any case the presence of as many as 6 other injuries not caused by fire-arm, seriously calls in question the veracity of the ocular testimony. Abdul Rehman's who had made no mention in the F. I.
R. Of any such injury made an improvement by saying "Many persons also collected on our noise, and they also gave injuries to Muzammil Shah." He asserted that he had said so in the F. I. R. But he was duly contradicted. Hakim makes no mention of these injuries perhaps because he "slipped away" after firing the shots. The other two ocular witnesses, viz. Ghulam Qadir and Lal are also silent. The omission is on a material point the ocular testimony. Abdul Rehman's who had made no mention in the F. I. R. Of any such injury made an improvement by saying "Many persons also collected on our noise, and they also gave injuries to Muzammil Shah." He asserted that he had said so in the F. I. R. But he was duly contradicted. Hakim makes no mention of these injuries perha se because he "slipped away" after firing the shots. The other two ocular witnesses, viz. Ghulam Qadir and Lal are also silent. The omission is on a material point.
16. Then there is the mystery as to where Muzammil Shah had fallen. There is no recovery of blood- stained earth from that spot nor has the spot been indicated in the site plan. The explanation offered fails to convince. Ac--cording to the prosecution case he had fallen at the scene of occurrence. Abdul Rehman's stated "Muzammil Shah deceased fell down at a distance of two or three karams from Mubarik Shah deceased. Blood also shed out from the injuries of Muzammil Shah on the ground. I had not pointed out the place where Muzammil Shah fell down to the police because "so many people walked over it, therefore, there was no blood at that time at that place".
According to Hakim also "Muzammil Shah bled I did not notice blood on the ground as I left the spot immediately. Muzammil Shah fell on the ground at a distance of three or four feet from Mubarik Shah". Ghulam Qadir stated: "Blood of Muzammil oozed out of injuries and fell on the ground. I pointed out the place where Muzammil Shah fell down and bled but it was not visible because many persons gathered at the spot". According to him "Muzammil Shah was lying injured on the southern side of Mubarik Shah at a distance of one karam". As regards the bloodstains at the other spot where Mubarik Shah had fallen, his explanation was "The relatives of Mubarik Shah had preserved the blood of Mubarik Shah". Lal, too, stated: "After receiving the shot Muzammil Shah accused's blood fell on the ground. I had pointed out the place the Inspector, Police where Muzammil Hussain Shah accused fell on the ground injured". He, however, volunteered "the place of blood of Muzammil Shah accused was overrun by the relatives of Mubarik Shah . . . . ." Muhammad Amin, A. S. I. Who had investigated the case at t initial stage did not explain his omission to locate the place where Muzammil Shah had according to the P. Ws. Fallen and where his blood had spilt.
He answered the question rather casually by saying: "I do not remember if there was any blood on the place where Muzammil Shah fell down at the time of occurrence. I only noticed the blood of Mubarik Shah at one place . . . . .". He admitted that he had not even shown the point in the site plan where Muzammil Shah was according to the witnesses taken by the accused persons after he had been injured said Ahmed Shah S. D. P. O. (P. W. 12) frankly admitted : "according to my investigation Muzammil Shah was murdered at a distance of four miles from the place where Mubarik Shah was injured.
17. To aggravate the difficulty, no crime empty was found at the scene although a minimum of three rounds had been fired, one by Sarwar and two by Hakim. Hakim stated "the empties of the gun were not thrown by me at the spot but those were thrown in paddy crop . . ." I did not disclose the empty to the Police nor about their location. Neither it was inquired from me". This conduct of Hakim as well as his admission that he had after the occurrence "left the spot immediately" and had not produced the gun until 18-9-1975 is not understandable. This is not the conduct of d truthful witness. The conduct of the S, D. P. O, (P. W. 12) is equally disappointing when he says "Hakim P. W. Did not produce any fun before me on 26-8-1976. 1 asked Hakim P. W. To produce the gun.
Hakim, P. W. Did not turn up till 18-9-1975 in spite of my directions to produce the gun immediately".
The reason given by him for not challaning Hakim under the Arms Ordinance is also not understandable. He stated: "I did not challan Hakim P. W. Under Arms Ordinance, in spite of the fact that he was not holding any licence for the gun. Hakim was a servant of Muzammil Shah who was the licence holder of the gun". But Hakim bad offered no such explanation for justifying his taking the gun. He stated that he had gone to Muzammil Shah for fetching fodder. He is a person who resides in another Chak which is at a distance of one square from village Noor Shah. He is thus not only a chance witness but has also failed to explain how he happened to reach the scene in time with the loaded gun belonging to another person whose house was "1-- square" from the place of occurrence.
18. In view of the above gaps and contradictions in the prosecution evidence it is difficult to believe that the ocular witnesses particularly Abdul Rehman's and Hakim had seen the occurrence or Lal and Ghulam Qadir who were cited in the dying declaration spoke the whole truth. The attempt of the witnesses at filling the gap between the version of the occurrence originally given by them and that given in the dying declaration, their omission to identify the spot where Muzammil Shah had fallen, the result of the investigation which showed that Muzammil Shah had been murdered four miles away from the place of occurrence, the failure of P. W. Hakim to produce and of the Police to recover the gun in time and the omission on the part of Ghulam Qadir to mention the presence and participation of Riaz and Zahoor appellants, all go to erode the credibility of the witnesses.
Moreover, they are all interested witnesses. Ghulam Qadir is the tenant of the maternal uncle .Of Abdul-Rehman's, Lal according to the dying declaration was the servant of the deceased, while Hakim if not a chance witness could be no stranger to the complainant party as he had a free access to the house of Muzammil Shah owner of the gun.
19. We are then left with the dying declaration of Mubarik Shah deceased. Learned counsel for the appellants raised many objections to its evidentiary value. He went to the extent of urging that no such declaration had in fact been made. For this, he relied on the fact that the deceased had been in shock at the relevant time and as such could not have made the statement attributed to him. I find that on the point of shock the medical officer was particularly cross-examined. He stated that the deceased "did not recover from the primary shock brought about by the infliction of multiple injury till his death" and further that mental balance of the deceased could remain normal for more than two hours and maximum period of his remaining in senses depends on the standard of treatment, he receives. In answer to a question whether in the absence of medical aid, the deceased could have retained senses for two hours, the medical officer replied "I cannot eliminate the possibility of injured having gone into shock after the first blow". But he further opined "the mental faculties of a person in shock vary but when the shock is severe the mental faculties may get effective (the Urdu version is). With the passage of time after having sustained injuries the intensity of shock may increase or a process of recovery may start". I need not reproduce the lengthy opinion expressed by the medical officer on the intensity of shock but there is nothing in his evidence which can completely oust the possibility of the deceased having been in a position to have made the statement. The oral testimony does show that the deceased was in a position to have made the state--ment. Abdul Rehman's complainant stated "Mubarik Shah was feeling pain when he was lifted to the hospital although he was speaking". The Assistant Commissioner (P. W.
13) who recorded the dying declaration stated that he "satisfied himself after inquiring from Mubarik Ali Shah injured that he was in full senses and could correctly answer the questions. So I proceeded to record the dying declaration . . . .". He had made due entry of having reached such satisfaction vide Exb. P. E.
1. The recording of the dying declaration cannot, therefore, be doubted.
20. The question, however, arises whether a conviction would be justified on the basis of the dying declaration alone The statement of a dying is distinguishable from other evidence inasmuch as it had not bee made on' oath nor had the maker been tested by cross-examination. Nevertheless, the statement if it contains the cause of death or the circumstances of the transaction which resulted in the death of its maker, is relevant in a case in which the cause of such death is in issue. I the statement is found by the Court to be genuine and true, it can b itself form a sufficient basis for recording conviction. Thus a dying declaration stands on the same footing as any other evidence and has to be judged in the light of the surrounding circumstances. The value of dying declaration in each case depends on its own facts and the circumstances in which it is made in relation to those facts. It is to be subjected to the same standard of scrutiny as another piece of evidence before it is accepted. Some of the tests for determining the genuineness of such a declaration are:- --
(1) Whether the maker had the physical capacity to make the statement ;
(2) Whether he bad the opportunity to recognize the assailants;
(3) Whether there were chances of mistake deliberate or otherwise on the part of the maker in naming the assailants;
(4) Whether the statement was free from prompting from any outside quarter; and
(5) Whether it had been correctly and faithfully reproduced.
The first and the last point have already been dealt with in the preceding paragraph. There is also no reason to believe that the deceased could have failed to recognize his assailants because it was a day time occurrence and the assailants were known' to him. The difficulty, however, is in accepting the statement as being true and free from every possible doubt. In the first instance there is the subsistence of bad relations between the parties and the fact that the deceased was actively prosecuting the case against the appellants party. The possibility of his having a motive to add a few more names in the list of his assailants cannot, therefore be ruled out. Moreover, there is evidence that he had been communicating with the witnesses before the recording of his statement. Abdul Rehman's complainant stated "We had been talking with Mubarik Shah on way to Mailsi". He, however, denied that he had been talking to him about the occurrence. Malik Ghulam Muhammad A. S. I. (P. W. 4) stated: "there were many persons including Abdul Rehman's P. W. In the Shah hospital near the injured when I reached there . . . . At that time Mubarik deceased was lying on the cot in the veranda . . . . . Mubarik Ali Shah was talking to the said persons when they were near to him. These persons were talking to Mubarik Shah and he was occasionally replying".
21. Such being the situation it will be highly unsafe to make the dying declaration the sole basis for conviction in the absence of corrobora--tion in material particulars. Unfortunately, such corroboration as far as the appellants are concerned is not available. The recovery of the sticks from the appellants is of little value because there is nothing to connect the same with the crime.
22. This is, therefore, a case where the evidence available is neither sufficient nor free from every reasonable doubt and as such the conviction, of the appellants is not warranted. I, accordingly, accept their appeal, set aside their conviction and the sentences and acquit them. They shall be set at liberty forthwith if not wanted in any other case.