KHALIL-UR-REHMAN KHAN, J.-Muzaffar Baig son of Manzoor Haig, (2) Saeed Baig son of Mahmood Baig, (3) Tariq son of Imam Baig and (4) Farooq son of Manzoor Haig, all Mughals by caste, residents of village Mandran Wala, Police Station Narowal, District Sialkot, appellants, alongwith two others were tried under S. 302/148/149, P. P. C. For forming unlawful assembly, rioting and the murders of Iqbal Baig and Munir Haig.
The learned Additional Sessions Judge, Sialkot vide his judgment, March, 1980 acquitted Iqbal Baig and Baland Baig but convicted and sentenced the appellants as under :-
(i) Muzaffar Baig to death and Frooq, Tariq and Saeed to life imprisonment and a fine of Rs. 5,000 each, or in default of payment of fine, three months' S. I. For the murder of Munir Baig ; and
(ii) Saeed Baig to death and Farooq Tariq and Muzaffar Baig to life imprisonment with a fine of Rs.
5,000 each, or in default of payment of fine, three months S. I. Each, for the murder of Iqbal Baig.
3. The convicts have appealed to this Court. Reference for confirmation of death sentence is also before us. Both these matters shall be disposed of by this Judgment.
4. The prosecution version, as narrated in the dying declaration Exh. P. F./2, was that Iqbal Baig deceased was resident of village Mandran Wala and was a paddler by profession. Mst. Azra Begum sister of Saeed Baig appellant was married to Naseer Baig, brother of Iqbal Baig deceased and was living with her husband but since the day of her marriage she created disruption in the house. Iqbal Baig deceased disclosed, on 24th February, 1976 this fact to his brothers and the same fact also came to the notice of Qamar alias Muhammad Baig and the brothers of Mst. Azra Begum and as they felt annoyed they threatend Iqbal Baig with dire consequences.
On 25th February, 1976 at about 12-30 p. m. Iqbal Baig and Munir were sitting in the house of Munir.
They heard an alarm arid so they came out in the street and were attacked there by Tariq, Farooq, Muzaffar and Saeed. The appellants and Baland Baig and Iqbal (acquitted accused) who were armed with Bangs, whereas the appellants were armed with chhuris. Saeed Baig appellant gave chhuri blow to Iqbal Baig deceased in the abdomen. Munir deceased was also given chhuri blows by Saeed and Muzaffar appellants. Farooq appellant gave chhuri blow to Iqbal Baig and Tariq appellant gave chhuri blow on his left arm. Iqbal Baig and Munir fell down. On hearing the alarm, Talib Masih, Mst. Khurshid Begum, mother of Iqbal Baig deceased, Mst. Irshad Begun] wife of Munir deceased, Rehmat Ali and Muhammad Tufail came to the spot. Munir died at the spot, Iqbal Baig deceased further stated in his dying declaration Exh. P.F./2 that he was taken to the hospital on a cot by Ramzan Baig, etc.
5. The above statement was got recorded by S.-I. Alam Din, S. H. O., Police Station Narowal who came to the Civil Hospital, Narowal after receiving information from the doctor. S.-I. Alam Din, on arrival at the hospital, inquired vide `ruqqa' Exh. P. G. From the doctor about the fitness of Iqbal Baig injured to make statement. The doctor reported vide Exh. P. G. /1 that he was fit to make statement.
It is the prosecution version that the statement Exh. P. F./2 was taken down by A. S.-I. Meter Khan in the presence of Dr. Muhammad Hussain who also signed the same. S.-I. Alam Din sent the statement to the Police Station on the basis of which F. I. R. Exh. P. F./3 was recorded. Thereafter, S.-I.
Alan] Din went to the place of occurrence and prepared the inquest report and injury statement in respect of Munir deceased and despatched the dead body for Post mortem examination. S.-I. Alan Din also inspected the spot and took Into possession blood-stained earth vide memo. Exh. P. D. S.-I.
Alan pin arrested Farooq and Tariq, on 27th February, 1976 and Muzaffar Saeed or, 1st March, 1976.
Recoveries of chhuris were also made from the appellants but chhuri P. 6 recovered at the instance of Tariq appellant was only found to be stained with human blood.
6. On 25th February, 1976 at 3-10 p. m. Dr. Muhammad Hussain examined Muhammad Iqbal and found five incised wounds and one stab wound on his person. Three incised wounds were in the area of right side of the bead, fourth was on the outer aspect of left upper arm while fifth was on the venteral aspect of left middle finger. The stab wound was in the ampigastrium peritonial cavity.
On 26th February, 1976 at 10-45 a.m. The same doctor conducted post--mortem examination on the dead body of Munir Baig deceased and fount one incised wound on the left side of the head and one stab wound on the right hypochondrium. Injury No. 1 was simple but injury No. 2 was grievous and dangerous to life. Death, in his opinion had occurred due to shock and excessive bleeding and injury No. 2 alone was sufficient to cause death in the ordinary course of nature.
On the same day at 11-15 a. m. The same doctor also performed post. Mortem examination on the dead body of Iqbal deceased. He found the same injuries as noted at the ante-mortem examination which have been described above. Injuries Nos. I to 5 were simple. Injury No. 6, a stab wound was grievous and dangerous to life. In the opinion of the doctor death was due to shock and excessive hamorrhage. The injuries collectively and injury No. 6 individually was sufficient to cause death to the ordinary course of nature.
On 29th February, 1976 at 6 p. m. The same doctor medically examined Farooq appellant and found two lacerations partially healed over the dorsam of left middle finger and over left ring finger and a scratch on the tip of left index finger.
7. The prosecution relied on the dying declaration Exh. P. F./2, ocular testimony of three eye- witnesses, namely, Talib Masih (P. W. 12), Mst. Irshad Bibi (P. W. 13) and Mst. Khurshid Bibi (P. W. 14), medical evidence contained in the statement of Dr. Muhammad Hussain (P. W. 6), recovery of blood-stained chhuri P. 6 from Tariq appellant and the evidence of motive.
The appellants pleaded innocence and stated that they had been falsely implicated in the case on account of enmity and that the two deceased were smugglers, they were involved in two cases of smuggling, one case under the Arms Ordinance and that they suspected that the said cases were got registered at the instance of Saeed Baig appellant. Saeed Baig appellant further stated that he was a Superintendent to Grade-16 in the office of the Accountant-General, Lahore and that he was on medical leave from 30th January, 1976 to 8th April, 1976. He further asserted that he resides in his own house at Lahore and, on 24th February, 1976 he had an attack of Meningitis and was admitted in the Mayo Hospital, Lahore on the same day and remained admitted there as indoor patient up to 29 February, 1976. He produced prescription Exh. D. D., discharge certificate Exh. D. E., certified copies of the F. I. Rs: No. 223 and No. 225 of the year 1974 of Police Station Narowal, certified copy of F.I.R. No. 2, dated 8th January, 1973 of Police Station Rayyia Exh. D. F. D.And D. H. Respectively.
Likewise, Muzaffar Baig appellant advanced plea of alibi as he stated that he was present on duty at his place of duty at the time of occurrence. The appellants in support of the pleas of produced evidence in defence.
8. Learned counsel for the appellants contended that he dying declaration was concocted by the prosecution as otherwise Iqbal Baig deceased was not physically fit to make statement of the type allege to have been made by him. It was contended that his Physical condition, as quoted by the doctor, sufficiently belies the dying declaration alleged to have been made by Iqbal Baig deceased. As regards eye witnesses account, learned counsel contended that Talib Masih ( P.W. 12) was inimical towards the appellants and that he, on his own having was merely a chance witness.
It was further argued that the ek4-witness account stands contradicted by the medical evidence as no blunt weapon injury was found by the doctor on the person of any of the deceased though the witnesses stated that Iqbal and Bland Baig (acquitted accused) who were armed with dangs also gave Jang blows to the deceased. According to the learned counsel, one injury each on the two deceased appears to have been caused by a dagger that is a double-edged weapon but according to the prosecution version none had used a dagger as the allegation was that the injuries were caused with chhuris.
It was also contended that the plea of alibi of Saeed Baig and Muzaffar Baig appellants was wrongly brushed aside as the same was established on record through independent evidence and merited to be accepted. He argued that in case the plea of alibi is accepted, then it will react on the entire prosecution version and in that eventuality the prosecution story has to be rejected in toto. He also assailed the recovery of chhuri P. 6 recovered at the instance of Tariq and urged that the said recovery cannot be relied upon.
9. On the other hand, learned counsel for the State and the complainant argued that the plea of alibi was merely an afterthought as it was taken for the first time while being examined under section 342, Cr. P. C. And that in any case the evidence produced to prove alibi does not inspire confidence. It was further argued that no real enmity existed between the families of the appellants and Talib Masih (P W. 12) and so his evidence cannot be brushed aside on the basis of the assumed enmity and that, in any case, Mat. Irshad Begum Mst. Khurshid Begum who were most natural witnesses can he relied upon for basing conviction as their testimony inspires con-- fidence.
10. We have gone through the entire record of the case with the assistance of the learned counsel for the parties and have also considered their respective submissions. Firstly, we take up the dying declaration. Dr. Muhammad Hussain (P. W. 6) sent 'ruqqa' Exh. P. D. To the S. H. O., Police Station Narowal informing him about the arrival of Muhammad Iqbal, in injured condition, in the hospital.
The time Ted on this `ruqqa' was 3 p. m. Another `ruqqa' Exh. P. F. Was sent to the S. H. O-- informing him that Muhammad Iqbal deceased who had receive stab wound in the abdomen was in precarious condition and pat arrangements be made to record his dying declaration. Thereafter M.
S. Aslam Din( P. W. 17) reached the hospital and after making the inquiry and obtaining the report of the doctor that the injured was in fit condition to make statement, got his statement recorded inth the handwriting of A. S.-I. Mehr Khan. S.-I. Alain Din (P. W. 17) stated that the statement was so recorded by A. S.-I. Mehr Khan in the presence of the doctor who remained present throughout the time that the statement was being recorded. It is strange that though A. S.-I. Mehr Khan recorded the statement. Yet be did not think it proper to put his signature on the statement. It is also peculiar that the statement was written by one person but was signed by the other. i.e. S.-I Alam Din. 1t is also to be noted that a certificate to the effect that Iqbal Baig deceased remained in full senses throughout the making of the statement was not admit--tedly obtained from the doctor. S.-I. Alam Din claimed that the doctor remained present throughout the period of making the statement but Dr. Muhammad Hussain (P. W. 17), to his statement, admitted that he did not remain present throughout the time of recording the statement and that he could not definitely say whether statement Exh. P. F./2 was recorded by the Sub-Inspector or the Assistant Sub-Inspector. The relatives of Iqbal injured were admittedly present with him and were talking to him when the police arrived and they were also present when the proceeding of the statement started. The doctor also admitted that a patient in that condition could make a statement but not a lucid statement.
Moreover, the condition of Iqbal deceased, as noted, was that the pulse was not perceptable. The blood pressure was also not recordable near about the time that the recording of the statement commenced. The pulse rate in between 4 p. m. To 5 p. m. Was high and the temperature was low and blood pressure was not recordable up to 5 p. m. A piece of cut liver was seen in the wound which was bleeding alarmingly. When the aforesaid condition, as noted by him, was brought to his notice, in cross-examination, the doctor admitted that a patient, in such a condition. Could not make a lucid statement. We on the contrary find that the dying declaration (Exh. P. F./2) is a lucid and coherent statement. According to the prosecution version injuries were caused at about 12-30 p. m. And the statement was recorded at some time after 4.10 p. m. As it was on receipt of `ruqqa'
Exh. P. G. Written at 4-10 p. m. To Alam Din, S. H. O. That he reached the hospital and allegedly got the dying declaration recorded. During all this period, Iqbal Baig bled profusedly and with that much loss of blood and in that condition an injured cannot make a lengthy, lucid as well as coherent statement specially when he was admittedly vomitting repea--tedly. It is thus not believable that Iqbal Baig deceased made the dying declaration (Exh. P. F./2) as alleged by the prosecution. Additionally, the doctor admitted that relatives of the deceased were present in the hospital and were talking to Iqbal Baig and that they were present even when the recording of the statement commenced. The possibility of tutoring or consultations, therefore, cannot be ruled out.
For all these reasons, statement Exh. P. F./2 cannot safely be held to have been made by Iqbal Baig deceased and hence we have decided to exclude the said dying declaration from consideration.
11. The evidence of recoveries, as indicated above, is of not much help to the prosecution as the recovery of chhuri P. 6 recovered at the instance of Tariq appellant was only proved to be stained with human blood, but this recovery also was not proved by any independent evidence.
Now, we are left with the ocular account, the medical evidence, motive and weed Bai1 takenthe two appellants, namely, proceeding further, we may add that in criminal case, burden always remains on the prove the guilt of the accused beyond reasonable shadow of doubt.
This onus does not shift at any point of time. Whether the defence succeeds in proving its plea of alibi ornot, the-prosecution is under obligation to prove its case against the accused beyond any reasonable a doubt. This duty, however, does not extend to proving that the defence case of alibi is false. Even if the defence fails to prove the plea of alibi, but upon the evidence in the case it succeeds in raisin a reasonable doubt in the mind of the Court as to the guilt of the accused, it will result in a situation in which the prosecution must held to have failed to prove its case against the accused beyond any reasonable doubt and the result must be one of acquittal. See Ameenullah v.
State (PLD 1976 SC 629). However, the plea of alibi, if taken, must be proved by the defence as under section 103 of the Evidence Act the burden of proof as to any particular fact lies on that who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. See Muksed Molla v. The Crown (PLD 1957 Dacca 503). The best evidence rule requires a person on whom lies the onus to prove, certain matter to adduce the evidence best available in the circumstances of the case. 1f the best evidence which is otherwise available has not been produced, it raises an adverse presumption against a person on whom lay the onus to prove the matter. See Rameshwar v. Bajit Lal Pathak (AIR 1929 P C 95).
The learned Judges of the Supreme Court in the case of Ameenullah also observed :- "I should, however, like to add that having regard to the provisions of section 103 of the Evidence Act read with the second illustration the accused having failed to discharge the onus legally put on him and failed to prove his case of alibi the Court should be left with the evidence adduced by the prosecution in support of its case and the question would then be whether this evidence convincingly proved the case against the accused."
With regard to plea of alibi it was also observed in Ameenullah's case :- "The failure to produce evidence of alibi at the earliest opportunity is also a circumstance which may go against the accused." See Emperor v. Sheo janak Pande".
We may also add that in a case where plea of alibi is established through satisfactory evidence, it will ordinarily belie prosecution version and in that eventuality what has to be seen is whether the prosecution story in entirety or in part stands falsified.
12. Having indicated the principles that will apply in this case for appreciating the evidence, we proceed to deal with the testimony of the eye-witnesses and the plea of alibi. In this case, Muzaffar Baig and Saeed Baig, appellants have been assigned the specific role of
(4) AIR 1934 All. 27 causing specified injuries to the two deceased by the eye-witnesses. Tariq and Farooq appellants were named in general terms as having caused injuries to Iqbal deceased. The injury which was the cause of death of Iqbal deceased, was attributed to Saeed Baig.. In these circumstances, if the plea of alibi is accepted, then it will adversely react on the whole prosecution version. Muzaffar Baig appellant as per statements of Hayat Ali (D. W. 1) and Asif Shabbir (D. W, 2) was marked present on duty on the date of occurrence. Even if the entry in the Register regarding presence on duty is accepted as true and factual, the same would not satisfactorily establish that he could not be present at the place of occurrence at the time the incident was alleged to have excurred. In similar circumstances, in case reported as Haji Ghulum Shabbir v. The State (1978 SCMR 216), the hospital records produced to show that the accused in that case was admitted in the hospital on the day of occurrence, was not relied upon as the hospital was located within less than 100 miles from the place of occurrence. Muzaffar Baig appellant could have easily reached the village, even if, the marked himself present on duty in the morning in the said register. We have, therefore, no hesitation in discarding the plea of alibi taken up by Muzaffar Baig appellant.
13. In support of the plea of alibi of Saeed Baig, appellant, four registers were produced by D. W.
3. In Casualty Ward Register, the name of one Saeed Ahmad was noted at Serial No. 9633. Against this entry. It was recorded that the patient was transferred to E. M. W, (East Medical Ward). Again, there is an entry in the name of Saeed Ahmad in the Emergency Ward Register at Serial No. 2380. Here, the parentage of Saeed Ahmad is given as Mirza Mahmood Baig. The patient was. Transferred to E.
M. W. It will be noted that, according to Casualty and Register, Saeed Ahmad was not sent to Emergency Ward but was transferred to East Medical Ward, yet the Emergency Ward Register also contains the entry in the name of Saeed Ahmad. The third register pertains to East Medical Ward wherein entry No. 203 is in the name of Saeed Ahmad. The patient was admitted on 24th February, 1976 and was discharged on 29th February 1976. This is the most important register but we find that the dates of admission into the Ward were not being maintained properly, as on different pages dates were entered haphazardly. For instance after making certain entries pertaining to the 29th of January, entries of 30th of January, 22nd of January, 15th of January, and 20th of January were made. Likewise, on another page, after entering date of admission as 19th of February, 1976, date of admission of other patient was noted as 16th and 12th of February. These two entries were assigned Nos. 180-A and 180-B. Again on the page on which entry No 203 in the name of Saeed Ahmad exists after making entries with reference to 24th, 25th, 26th and 27th of February, an entry of 23rd of February was made. This would show that the register was not being maintained properly. On this regis--ter, there is also a note, dated 1oth January, 1976, which reads as under :- "Entries have not been made month-wise. Request is made not to repeat it in future, otherwise it will not be accepted as it creates problems in record maintenance."
The 4th register is Nursing Resort Book of E. M. W. At page 33. Entry in the name of Saeed Ahmad was relied upon. The name of the father or other particulars to connect the entry with Saeed Baig appellant, is not forthcoming. It will be noted that the plea of alibi appear to have been taken for the first time at the trial stage. A suggestion put to the Investigating Officer was denied by hire that Saeed accused did not state before him that he had been an indoor patient in the Mayo Hospital, Lahore, from 24th February, 1976 to 29th February, 1976, and that it is incorrect to suggest that deliberately omitted to record the statement of Saeed Baig with regard to his being an indoor patient in the hospital. Be that as it may, the important thing to be proved in this connection was the condition of Saeed Baig. If at all he was admitted in the hospital, as unless a person is incapable to move about, a visit to village Mandranwala from Lahore in these days can be easily made despite entry of admission in the record of the hospital. For all these reasons, we are not satisfied with the plea of alibi raised by Saeed Baig, appellant, and are not persuaded to accept the same.
The question still remains whether the ocular account of the eye witnesses inspires confidence and can be relied upon for maintaining conviction of the appellants. Talib Masih P. W. Has some inimical back. Ground and he was a chance witness as he had no specific reason for being present at the time of occurrence in the nearby house of his father. His testimony, even otherwise, does not inspire confidence. We are thus left with the testimony of Mst. Irshad Bibi and Mst. Khurshid Begum P. Ws.
Mst. Irshad Bibi is the wife of Munir deceased whereas Mst. Khurshid Begum P. W. Is the mother of Munir and Iqbal deceased. Their presence in the house has neither been assailed nor can be doubted. The deceased were done to death in the street in front of the house of Munir deceased when he alongwith Iqbal deceased followed by the two ladies came out of the house. No reason was shown on record due to which it could be urged that Mst. Irshad Bib I and Msr. Khurshid Begum P. Ws. Could have substituted the appellant for the real culprits. Their testimony so far as it stands corroborated by medical evidence can safely be relied upon for determining the guilt of the appellants. The plea of the learned counsel for the appel--lants that as the version of the eye- witnesses that Iqbal Baig and Buland Baig (acquitted co-accused) also caused injuries to the deceased with their respective dangs, stands contradicted by the medical evidences the other part of the testimony in which they involved the other appellants cannot also be accepted, has not impressed us. Iqbal Baig And Buland Baig accused were acquitted by the trial Court giving them benefit of doubt in view of the fact that no injury allegedly caused by blunt weapon was found by the doctor on the dead bodies of the two deceased. The testimony of these ladies as against Muzaffar Baig and Saeed Baig appellants, stands corroborated by the medical evidence as well as the evidence of motive. They had, however, involved Tariq and Farooq appellants, in general terms.
Considering the number and nature of injuries found on the persons of the deceased, the testimony of the ladies as against Tariq and Farooq appellants, does not stand supported. It would, therefore, not be safe to convict Tariq and Farooq, appellants. We accordingly, acquit Tariq and Farooq appellants on both counts for the offence under section 302/34, P. P. C. The conviction of Muzaffar Baig and Saeed Baig appellants under section 302/34; P. P. C. Is maintained on both counts. The question of sentence has received our serious considration. There is mitigaing circumstance as the abusive language was and the disparaging remarks were made. Not on the day of occurrence immediately prior to the causing of injuries by the two appellant:, but a day earlier. Had the injuries been caused at the spur of the moment when the abusive language was used or the remarks were made the situation would have been different. There being mitigating circumstance, there is no alternative but to exact the normal penalty of death. Muzaffar Baig is sentenced to death and Saeed Baig is awarded life imprisonment and a fine of Rs. 5,000 each or in default of payment of fine to suffer further S. I. For three months for the murder of Munir Baig.
Likewise, Saeed Baig is sentenced to death and Muzaffar Baig is sentenced to life imprisonment and a fine of Rs. 5,000 each or in default of payment fine to suffer further S. I. For three months for the murder of Iqbal Baig. The fine, if realized, shall be paid as compensation to the legal heirs of the two deceased, i.e.. Rs. 10,000 to heirs of Munir deceased and the other amount of Rs. 10,000 to the heirs of Iqbal Baig deceased. The criminal appeal is, therefore, dismissed except to the extent of Tariq and Farooq appellants and the death sentence awarded to Muzaffar Baig and Saeed Baig appellants is hereby confirmed.