Muzammal Hussain (34), Ali Sher (25), Nazir son of Manzoor (24), Luck by caste, Naazar Hussain alias Naji Shah (22) and Nazis Ahmad alias Biddi son of Ramzan (34), Jhabel by caste, have been convicted and sentence to 6 months' R. I. Each under section 148, P. P. C., 6 months' R. I. Each under section 323/149, P. P. C. And life imprisonment plus fine of Rs. 1,000 each under section 302/149, P. P.
C,, in default whereof one year's R. I. Each, by Additional Sessions Judge, Sahiwal, vide order dated 6th August, 1981. It was also directed that fine, ii, realised, shall be paid to legal heirs of Atta Muhammad, deceased. Feeling aggrieved, all the convicts have filed this joint appeal (Cr. A. No. 145/1981) against their convictions and sentences.
2. T he incident took place at Maghribwela on 6th April, 1980 at P.1 Barshan in the vicinity of Harappa Town at a distance of about one furlong (as given in column No. 4 of the F. I. R.) from Police Station Harappa, District Sahjwal, wherein Atta Muhammad alias Attau aged 55 years was murdered and Muhammad Shafi P. W. Was caused simple hurt. F. I. R. Exh. P. F./1 was registered on the basis of dying statement] Exh. P. F. Made by Atta Muhammad alias Attau, deceased, on the next day at 1-00 p. m. At District Headquarters Hospital, Sahiwal, where he was lying admitted. It was recorded by S. I. Nasrullah Khan, S. H. O., police Station Harappa (P. W. 14) and on its basis a case was registered under sections 148, 307, 149, P. P. C. Atta Muhammad died of the injuries on 17th April, 1980 and section 302, P. P. C. Was added.
3. The case of the prosecution briefly is that on 6th April, 1980 at Maghribwela Atta Muhammad alias Attau accompanied by his son Asad Abbas (P. W. 13) and a relative Muhammad Shafi (P. W.
12) was return--ing home after meeting Maula Dad, Lambardar. When they reached near P.1 Barshan, Muzammal Hussain, Nazar Hussain alias Naji Shah, Nazir alias Biddi and another Nazir son of Manzoor suddenly emerged from tile biding with sticks in their hands. Muzammal Hussain raised lalkara that Atta Muhammad should not escape alive and simultaneously he gave him a stick blow, which landed on his right arm, as a result of which he fell down. Thereafter all the appellants showered dang blows on his head, legs and arms. Muhammad Shafi (P. W. 12) advanced to rescue Atta Muhammad he too was belaboured. The victims raised alarm and the assailants decamped.
Both the injured, Atta Muhammad and Muhammad Shafi were removed to Civil Dispensary Harappa for treatment by their relatives but the doctor was not available there. Having waited therefore 1i hours or so the injured were taken to District Headquarters Hospital, Sahiwal, by bus the same night reaching there at about 12 (mid-night). Dr. Gulzar Muhammad Dogar (P. W. 2) examined them at 12-15 a.m. And admitted them as indoor patients. He issued medico-legal reports Exh. P. D. In respect of Atta Muhammad and Exh. P. E. In respect of Muhammad Shafi. He noted 14 injuries on the person of Atta Muhammad, spread all over his body. Of them, 8 were kept under observation and the rest were declared as simple in nature. Likewise 8 injuries were found on the person of Muhammad Shafi P. W., caused with blunt weapon within the duration of 24 hours.
Out of them 2 were kept under observation and the remaining were declared to be simple.
4. On 4th July, 1980, S.- I. Nasrullah Khan (P. W. 14) happened to visit District Headquarters Hospital, Sahiwal, in connection with some other case and having found Atta Muhammad and Muhammad Shafi admitted there recorded statement Exh. P. F. Of Atta Muhammad at 1-00 p. m. After Dr. Munir- ud-Din Medical Officer, District Headquarters Hospital, Sahiwal, declared him fit to make statement.
He also recorded statement of Muhammad Shafi P. W. It appears that Atta Muhammad was later removed to Mayo Hospital, Lahore, where he remained admitted from 4th July, 1980 till he died of card iorespiratory failure on 17th April, 1980.
5. Having learnt about the death of Atta Muhammad S.- I. Nasrullah Khan went to Mayo Hospital, Lahore. He prepared injury statement Exh. P. P. And inquest report Exh. P. Q. Of the deceased and moved for post-mortem examination of the dead body which was carried out by Dr. Sabir Ali (P. W.
1), Police Surgeon, Lahore. The doctor noted 16 injuries vide post-mortem report Exh. P. A. Of them, 8 were on the arms, 3 on legs, one on head, one on nose and 3 in front of the chest. The doctor found fracture of 3rd left matacarpal ring finger, left and right ulna bones. In his opinion the injuries were ante-mortem and probable time between the injuries and death was about 10 days and between death and post-mortem examination about 22 hours. According to the doctor, death had occurred due to collective effect of the injuries (fractures) and pulmonary embolism. Operation notes Exh. P: B. Revealed that there were fractures of both the legs also. They were opened through general incision and left leg below the knee joint was amputated.
6. S- 1. Nasrullah Khan (P. W. 14) arrested Nazir Ahmad on 26th April, 1980, Muzammal Hussain, Ali Sher, Nazar Hussain alias Naji Shah and Nazir alias Biddi on 2nd May, 1980. On 26th April, 1980 Nazir Ahmad led to the recovery of blood-stained sota P.
11. Ali Sher and Nazar Hussain alias Naji Shah got recovered blood-stained sotas P. 1 and P. 2, respectively on 7th May, 1980 which were found stained with human blood by the Chemical Examiner and the Serologist vide their reports Exhs. P. R.
And P. T. Respectively.
7. The case was also investigated by Sh. Khalil Hassan, Superinten--dent of Police, Crimes Branch, who declared Nazar Hussain and muzammal Hussain as innocent but they were challaned under the order of the Deputy Inspector-General of Police.
8. At the trial the prosecution relied on dying declaration Exh P. F. Made by Atta Muhammad, deceased; the ocular account and the motive narrated by Muhammad Shafi (P. W. 12) and Asad Abbas (P. W. 13); the recovery of blood-stained weapons deposed to by Sher Muhammad (P. W. 7) and Ghulam Mustafa (P. W. 9) besides the medical evidence provided by Dr. Sabir Ali (P. W. 1), and Dr. Gulzar Muhammad Dogar (P. W, 2) regarding injuries of Muhammad Shafi and death by violence of Atta Muhammad.
9. The case of the accused/appellants is that of denial simpliciter. Muzammal Hussain stated that he was involved at the instance of his political rivals, namely, -Muhammad Arshad Khan and Ghulam Ahmad Khan because he was elected Chairman of Harappa Union Council by defeating Ghulam Ahmad, who filed election petition against him which was pending adjudication during the days of occurrence. He further stated that Atta Muhammad, deceased, was a registered bad character of Police Station, Harappa, involved in numerous dacoity, theft-, fraud and murder cases, and was patronised by his political rivals. Nazir Ahmad -Luck, appellant, examined his father Manzoor Ahmad as D. W.
1. None else produced any defence evidence.
10. The learned trial Court believed dying declaration Exh. P. F; the ocular account, the evidence of motives and the incriminating recovery of weapons and held all the five appellants guilty of offences of rioting, murder and voluntarily causing hurt and sentenced them as indicated above.
Through filing the instant appeal they have challenged their convictions and sentences.
11. Learned counsel appearing on behalf of the appellants vehemently argued that the dying declaration Exh. P. F. Of Atta Muhammad, deceased, was belated and also its maker being of questionable integrity it is not worthy of credence. He also argued that as Atta Muhammad was not under imminent expectation of death at the time of recording it, therefore, it was inadmissible.
Regarding ocular account he submitted that the eye-witnesses are closely related to the deceased and belong to the enemy's camp of the appellants, therefore, they cannot be safely relied upon without corroboration from an independent unimpeachable source, which is conspicuously absent in this case. As against this, the learned counsel for the State and for the complainant submitted that the prosecu--tion's main stay is the dying declaration corroborated by eve-witnesses. They, however, conceded and very rightly that the recovery of weapons of offence and the evidence of motive was not reliable. Elaborating, further they sub pnitted that presence of Muhammad Shafi (P. W.12) at the time of occurrence cannot be doubted as he carried hallmarks of the occurrence on his person in the shape of injuries and injuries of both Muhammad Shafit P. W. And. Atta Muhammad deceased were found to be of same duration, therefore, his testimony provides corroboration to the .Lying declaration, which can safely form basis for conviction of the appellants.
12. The most important piece of evidence from prosecution point of view, in this case, is the dying declaration Exh. P. F. A dying declaration is admissible in evidence under section 32 of Evidence Act, without any precondition that the maker should be in immenent expectation of death. Normally the Courts attach great importance to a dying declaration presuming that "truth sits upon the lips of a dying man", yet it is always put to close scrutiny before placing reliance thereon for such statement is seldom, on oath and its maker is not available for cross-examination and also because our society's moral fibre has gone very weak, therefore, I proceed to examine if it is worth reliance. It is in the evidence that the deceased was a registered bad character under surveillance of Harappa Police, against whom various cases of theft, dacoity, murder, Martial Law Regulation and cheating etc., had been registered. Of all the persons Ghulam Mustafa P. W. The deceased's own son, has admitted this fact. He further conceded that Muhammad Arshad Khan is a close relative of Ghulam Ahmad who was defeated by Muzammal Hussain, appellant, in the election for chairmanship. He also admitted that he had given power-of-attorney to Muhammad Arshad Khan in a case under section 406/420, P. P. C. Registered against his father at the instance of one Azim who was helped by Muzammal Hussain. It clearly shows that the deceased and his family were thick with Ghulam Ahmad's family politically opposed to Muzammal Hussain. With this background the fact of not reporting the incident to the police till next mid-day has gained great importance. Admittedly both Atta Muhammad and Muhammad Shah were removed from the spot to Harappa Civil Dispensary at 1/2 furlong's distance from Harappa Police Station. They stayed therefore one and a half hours before leaving for Sahiwal District Headquarters Hospital by bus. It gives rise to grave suspicion as to why during this period no report was made to the police when Atta Muhammad as well as Muhammad Shafi were in full senses and the police station was also close by. If they could not go or be taken to the police station, at least some police officer could have been called there easily and the F. I. R. Could be lodged without any loss of time.
13. Again it is highly intreaguing as to why the dying declaration of Atta Muhammad was not got recorded by a Magistrate, easily available at Sahiwal, a district headquarter.. S. I. Nasrullah Khan's abrupt arrival at Sahiwal hospital for recording dying declaration adds further doubt about its genuineness. He claimed that he visited the hospital in connection with another case per chance but he failed to give particulars of that case. It appears, therefore, that he was taken there by Muhammad Arshad Khan or Ghulam Ahmad, political and influential personalities of Harappa Town and inimical to Muzammal Hussain. There appears, no other reason for not immediately reporting the matter to the police, except that the complainant party remained busy deliberating and preparing list of those to be involved in the case, under advice of Ghulam Ahmad and Muhammad Arshad Khan, their party leaders.
14. According to the eye-witnesses and the dying statement Exh. P. F. Muzammal Hussain, appellant with his party men laid in ambush near P.1 Barshan and as soon as Atta Muhammad arrived there, he raised lalkara and simultaneously gave the first blow to the deceased. This version appears to me as highly improbable. It is not believable that Muzammal Hussain, an elected Chairman of about seven union councils and a leader of his group would himself partake in murdering Atta Muhammad with whom he had no direct living dispute whatsoever. If at all he wished to harm the deceased, he could easily have deputed his party-- men or confederates to do the job for him. I am convinced that the deceased was prompted and tutored by Ghulam Ahmad and Muhammad Arshad Khan to falsely implicate Muzammal Hussain in this case. As the deceased involved Muzammal Hussain, an innocent person, there is, thus no guarantee that the remaining persons named by him were really the guilty persons, particularly because he also had long criminal history and chequered past, hence I am reluctant to act upon his statement Exh. P. F. Without corroboration from an unimpeachable source.
15. Next comes the evidence of eye-witnesses, namely, Muhammad Shafi and Asad Abbas, who are the close relations of the deceased. I am conscious that evidence of a witness cannot be discarded merely because C of his relationship with the deceased, provided his testimony is otherwise trustworthy. No doubt, Muhammad Shafi received injuries along with Atta Muhammad, deceased, and his presence at the time of occurrence is established but it is to be seen as to whether his evidence inspires confidence 7 I have already held that the deceased's family is under obligation to Muhammad Arshad Khan, etc., political opponents of Muzammal Hussain and belong to his enemy's camp. They deliberately concealed that Atta Muhammad, deceased was a bad character and was involved in number of criminal cases. Muhammad Shall P. W. Also stated that he was removed on cot to the hospital but the medical certificate Exh. P. C. Issued by Dr. Gulzar Muhammad Dogar shows that he reached hospital of his own without any body's help. This shows that he was capable of going to Harrapa Police Station to lodge the report yet b did not do so. It means that he succumbed to the influence of Ghulam Ahmad and Muhammad Arshad Khan and kept silent waiting for the final outcome of the deliberations till noon the next day. His silence for such a long time is meaningful. He named Muzammal Hussain as the principal accused and toed the line given to him by enemies of D Muzammal Hussain. His evidence is, therefore, not above board. Abbas P. W. Son of the deceased is also no exception. Their evidence cannot be taken as corroboration of the dying declaration Exh. P. F., for the simple reason that one tainted piece of evidence cannot corroborate the other tainted piece of evidence.
16. Now a word about evidence of motive. It is stated that certain women who gathered for participating in betrothal ceremony of the daughters of the deceased were teased by Nazir Biddi and Nazar Hussain alias Naji Shah, appellants whom the deceased had abused and that they killed him to avenge their insult. Not a single woman has appeared to prove that she was teased by aforesaid appellants or that on account e of this the deceased had abused the appellants. To me, this motive) appears to be a concoction.
17. The incriminating recoveries are sought to be proved by She Muhammad (P. W. 7), nephew of the deceased, and Ghulam Mustaf (P. W. 9), son of the deceased, which were effected after about month of the occurrence. Admittedly the places of recovery were surrounded by different inhabitants but none of them was made to attest these recoveries. In view of their being of doubtful nature the learned counsel for the State and the complainant rightly did not rely on these recoveries.
18. It is unfortunate that some of the appellants who might have taken part in the murder, of Atta Muhammad deceased, are going unpunished but for this unhappy result prosecution has to blame its own self for having brought in "touched up" dying declaration and that too without any independent corroboration.
19. For what leas been stated above, I hold that the evidence on record do not provide safe and sufficient basis for convicting the appel--lants on capital charge. Consequently, their convictions and sentences G cannot be maintained, and are hereby set aside. 1n result this appeal succeeds and the appellants are acquitted. They be released immediately if not wanted in any other case.