BASHIRUDDIN AHMAD, C. J.--Saleem alias Muhammad Humayun (18) was tried for the murder of Muhammad Yousaf on June 1, 1970, at village Pachagi, by the Additional Sessions Judge, Peshawar, who convicted and sentenced him under section 302, P. P. C. to suffer death.
2. The condemned person appealed and the case is also before us on reference under section 374, Cr. P. Code, for confirmation of the death sentence. This judgment will dispose of the appeal as well as the reference.
3. The prosecution story, briefly narrated, is that, on the eventful day, at 9-45 a. m., the deceased was going towards his house when he came across the appellant near the house of one Khan and fired three shots with a pistol, out of which two hit the deceased. Muhammad Yousaf son of Ghulam Muhammad saw the occurrence. He placed the deceased on a cot. Muhammad Yunus, father of the deceased also came up on hearing fire-shots.
The motive for the assault was that shortly before the occurrence, deceased, who had been engaged as a labourer by Nauroz son of Ghulam Muhammad, was constructing a shed. The appellant happened to pass that way carrying on his head a bundle of grass. The deceased looked towards the appellant and the latter took exception to it, which resulted in exchange of abuse between them followed by an altercation in the course of which the appellant took out the sickle from the bundle of grass with a view to assault the deceased, but Muhammad Yousaf son of Ghulam Muhammad intervened and took away the sickle Exh. P. 4 from the appellant.
4. The deceased was taken in a tonga by his father to Daudzai Police Station, 11 miles away, where at 11-45 a. m. the deceased made the report Exh. P. A. After scribing the report A. S. T. Shah Dad Khan (P. W. 8) prepared the injury-sheet Exh. P. N. and sent the deceased to the Lady Reading Hospital, Peshawar, for medical examination. A copy of the report Exh. P. A. was sent to A. S. I.
Muhammad Nazir (P. W. 12), who was in the ilaqa and when he was about to leave for the spot, he learnt that the deceased had been taken to the hospital by his father. The Assistant Sub-Inspector went to the hospital and taking Muhammad Yunis with him visited the spot and prepared the site plan Exh. P. E. The deceased expired at 11 p. m. on June 1, 1970, in the hospital. A. S. I. Dost Muhammad Khan (P. W. 7) prepared the injury-sheet, drew up the inquest report and then despatched the dead body to the mortuary for post-mortem examination.
5. During the investigation, Muhammad Yousaf produced sickle Exh. P. 4, which he had seized from the appellant and it Was taken into possession by the police. Muhammad Yousaf son of Ghulam Muhammad had received a scratch while snatching the pistol from the appellant. S. I. Sultan Muhammad Khan (P. W. 13) prepared his injury-sheet and sent him to the hospital for medical examination. There was blood on the shirt of Mohammad Yousaf which was taken into possession and was sealed into a parcel by the police. A lead piece of bullet, Exh. P. 3, removed from the dead body of the deceased by the doctor was taken into possession by the police, vide memo. Exh. P. C.
The offence was changed from under sections 307 to 302, P. P. C. after Muhammad Yousaf deceased had breathed bis last in the hospital. The appellant was arrested on 17.6-70.
6. Dr. Muhammad Saleem (P. W. 1) examined Muhammad Yousaf, on June 1, 1970, when he was alive, and found the following injuries:-- (1)A fire-arm entrance wound, epigastric region, "x skin deep, 3 fingers lateral to the mid line on the right side and three fingers below sternal cartilage.
No exit was seen. There was no charring.
(2)A fire-arm wound x x skin deep on the right shoulder-joint.
The nature of the injuries was grievous caused by fire-arm.
After the death of Mohammad Yousaf, the same doctor conducted post-mortem examination on the dead body the same day at 11 p. m. and in addition to the injuries found by the doctor at the time of medico-legal examination of the deceased he also found a fire-arm exit wound 1" x r on the back of the right shoulder. The doctor had missed this injury at the time of medico-legal examination of the deceased as the patient was in severe shock and was admitted in a hurry in the hospital. This injury was the exit of injury No,
2. Death, in the opinion of the doctor, was due to shock and haemorrhage caused by the injury to the abdomen.
7. Dr. Didar All (P. W. 2) examined Muhammad Yousaf for his injuries on June 2, 1970, at 2-30 p. m. and found a small healed scratch not exceeding W" on dorsal aspect of left wrist-joint. The injury was simple in nature and caused by means of blunt weapon.
8. The defence of the appellant was a bare denial. He submitted that he had gone to D. I. Khan, where he stayed with his brother, who is in the Education Department and did not abscond, but voluntarily surrendered himself to the police.
9. The appellant examined Amir Shah in his defence. He deposed that when the deceased was shot, he was attracted to the spot, found a number of women present there and that the deceased was unable to speak. The witness continued that he came across Muhammad Yunus, father of the deceased, near the shop of one Kachkol. The witness said further in his statement that he did not notice the appellant coming towards his house, nor he saw Muhammad Yousaf and Nauroz P. Ws. on the spot at the time of the alleged occurrence. We shall refer to the defence evidence at the proper stage.
10.The case against the appellant rests on the oral dying declaration alleged to have been made by the deceased to his father immediately after the occurrence, and the testimony of two eye- witnesses, namely, Muhammad Yousaf (P. W. 9) and Nauroz (P. W. 10) in addition to the report Exh.
P. A. lodged by the deceased, which came to be treated as dying declaration after the death of Mohammad Yousaf.
11.The trial Judge refused to treat Exh. P. A., as the dying declaration in view of the statement of its scribe who said that as the deceased was not seriously injured, he did not consider it necessary to record it in the form of a dying declaration and have it attested either by the father of the deceased or the tonga-driver, who were present when Exh. P. A. was recorded. There is no reference in the judgment of the trial Court about the oral dying declaration, alleged to have been made by the deceased to his father who also claimed to have seen the appellant entering his house armed with a tamacha after the occurrence. The trial Judge believed Muhammad Yusuf P. W. and held that the appellant fired thrice at the deceased who was hit with two shots. There is nothing in the judgment of the trial Court to show whether Nauroz was believed or not. The defence of alibi was disbelieved and it was held that the appellant absconded after the occurrence. The motive story was accepted by the trial Court. In conclusion, the appellant was convicted and sentenced as already observed in the opening paragraph of this judgment.
12.We propose to take up first the oral dying declaration. The deceased mentioned in his report Exh. P. A. that his father came running to the spot on hearing fire-shots and helped in placing him on a cot, but there is no reference to any oral dying declaration made by the deceased to his father. The deceased did not say in Exh. P. A. that his father made any enquiry from him and muchless that he mentioned to his father that he was shot by the appellant. The omission tends to show that this piece of the evidence is a fabrication. Muhammad Younis, the father of the deceased, was interested to support the story of oral dying declaration and Muhammad Yousaf, the eye-witness, who was believed by the trial Court, introduced this story for the first time in his statement at the trial. Muhammad Yousuf, in his statement recorded under section 164, Cr. P. Code, had stated that he placed the deceased on a cot, that he was unable to speak, but from this part of his statement Muhammad Yousaf resiled at the trial. Muhammad Yousaf is definitely inimical and the relevant portion from his statement detailing the enmity is reproduced below for facility of reference:-- "Ghulam Muhammad is my father. I do not know whether my father was charged for the murder of Amirzada alias Khanzada uncle of the accused. It might be true that my father was committed to the Court of Session and acquitted in that case. I do not know whether there was another fight between my father and one Samarullah on one side and Abdul Sattar, Abdul Jabbar uncles of the accused on the other side and that one Samarullah died and another person was injured. In this case, Abdul Sattar was sentenced to two years' R. I. under section 324, P. P. C."
Muhammad Yousaf tried to suppress the truth. He was unable to deny the suggestion in cross- examination and it is not possible to believe that he was not aware if his father was charged and committed to the Court of Session for the murder of Amirzada 'alias Khanzada and ultimately, acquitted in that case. We, therefore, do not consider it safe to rely on oral dying declaration alleged to have been made by the deceased to his father in presence of Muhammad Yousaf.
13. The report Exh. P. A. was lodged after two hours of the occurrence and if the deceased was unable to speak when successfully fired at by his assailant, there was remote chance of his having made a statement after two hours at the police station. The scribe of the report Exh. P. A. stated that the deceased was brought in an injured condition in a tonga by his father Muhammad Yunis. It appears the deceased was not removed from the tonga, but the Assistant Sub-Inspector came to the tonga and while Muhammad Yousuf deceased was lying in the tonga, he recorded the report Exh. P. A. The Assistant Sub-Inspector affirmed that the deceased was alive and was in senses and could speak coherently. There is, however, the opinion of Dr. Muhammad Saleem Khan, who examined the deceased in his lifetime and it is to the effect that he could speak for two or three hours after the receipt of the injuries. One thing is significant in the statement of Dr. Muhammad Saleem Khan that he did not ask a single question from the deceased at the time of his admission or treatment. This statement on the part of the medical witness gives rise to lurking suspicion in our mind that the deceased might not have been in a position to make the statement Exh. P. A. which is attributed to him. The deceased, during his lifetime was examined at 12-50 p.m. by the doctor. The scribe while recording Exh. P. A. did not consider it to be the last statement of the deceased as is clear from his evidence. He stated that he did not consider it necessary to record the statement in the manner in which a dying declaration is recorded and to get it attested either by the father of the deceased or the tonga-driver in whose tonga the victim had been removed to the police station. We have it in evidence that the deceased was accompanied to the Thana by Jumma Khan P. W. in addition to one other villager and the father of the deceased. It is in the statement of Muhammad Yousuf that Jumma Khan is his brother-in-law. Farid is a brother of Jumma Khan, who is engaged to a sister's daughter of one Khanai son of Aslam. Samand Khan is a brother of the deceased. Khanai son of Aslam and Samand Khan are brothers-in-law as their wives are sisters.
The possibility about the deceased having been prompted to make the statement imputed to him was there.
Their Lordships of the Supreme Court in Ghulam Farid v. The State , while discussing the probative value of a dying declaration held as under :- "The witnesses mentioned in the dying declaration, namely, Ahmad Bakhsh and Bakhsha, tarkhans were not produced before him. This too is regrettable, for it is often found that a dying declaration made elsewhere that at a Thana is more worthy of reliance than one made in the presence of the Police, where also the relatives who have brought the Injured man to the Thana are generally present and usually cannot be prevented from putting a prepared case through the mouth of the deponent."
A similar view was taken by the Supreme Court of a dying declaration in Usman Shah v. The State .
14. The refusal on the part of the trial Judge to treat Exh. P. A. as the dying-declaration in view of the statement of its scribe, who said that as the deceased was not seriously injured, therefore, he did not consider it necessary to record it in the form of a dying declaration and get it attested by witnesses who were present, is misconceived. There is a reference in the judgment of the trial Court to a ruling Hayatullah v. The State . In that case, the relevant observation regarding the dying declaration is to the following effect:-- "The so-called dying declaration was recorded by the A. S. I. of the police. The A. S. I. has also stated that the condition of the deceased was not serious at the time when his statement was recorded by him. Sanctity is normally attached to a dying declaration because it is assumed that when a person is face to face with death, he would like to make peace with God and would not tell lies. In this case his condition, as deposed by the A. S. I. was not serious and therefore the F. I. R. cannot be treated as a dying declaration."
There is no such thing as a 'dying-declaration' in the Evidence Act. The relevant provision in the Evidence Act is section 32(1). It reads:-- "When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question."
It is, therefore, clear from the language of the relevant portion from the section itself that even if the maker of the statement was not under expectation of death, still the statement would be relevant in proceedings in which the cause of his death comes into question. The point was considered in the case of Inayat Khan v. Emperor and it was observed: 41 . . . . that under the English Law a dying declaration is admitted only if the injured man was aware that he was dying from the result of the injury received by him. The Evidence Act, however, does not use the expression "dying declaration" at all. Section 32, Cl. (1), Evidence Act merely lays down that a statement made by a person who is dead is relevant when the statement is made as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death,1 2 3 4 in cases in which the cause of that person's death comes into question. It is clear that the Indian Legislature deliberately departed from the corresponding English Law on the subject. The wide words used in the clause referred to above show that it was intended to cover statements other than dying declarations strictly so-called."
Their Lordships of the Division Bench in the Lahore case, referred to the remarks of Fforde, J. in Autar Singh v. Emperor that the declaration made by the deceased before the Sub-Inspector could not be said to be dying declaration and was, therefore, inadmissible in evidence. Young, C. J. and Rangi Lal, J. found that the view taken by Fforde, J. in Autar Singh's case was dissented from by a Bench of the Bombay High Court in Shivabhai Becharbhai v. Emperor . The Division Bench observed :- "We are clearly of opinion that, under the Evidence Act, a statement made by a person who is dead, as to the cause of his death is admissible in evidence even though he was not aware that he was dying when he made it."
Speaking with the utmost respect, we are of the view that the law has not been correctly laid down in Hayatullah's case. We hold that the report Exh. P. A. made by the deceased in the instant case at the police station was relevant and was wrongly excluded by the trial Judge. It is altogether different that the statement is not entitled to such sanctity to which a dying declaration is because according to the evidence of the scribe, he did not record it in the manner in which a dying declaration is recorded, nor did he get it attested by any of the witnesses present at the time of recording it. It is, therefore, for the Court to consider what value is to be attached to such a statement. Since Mohammad Yousaf deceased was accompanied by Jumma Khan to the police station and he is proved to be related to Muhammad Yousaf son of Ghulam Muhammad, who has enmity, the possibility of a prepared statement having been put in the mouth of the deceased could, therefore, not be ruled out in the circumstances of the case. Furthermore, the condition of the deceased, it appears, was so serious that he could not be taken out of the tonga adnd the scribe of the deposition came up to the tonga and recorded the statement of the deceased while he was lying in the tonga. We, therefore, do not attach any importance to the statement in Exh. P. A., as it was recorded in the Thana when probably the deceased was not in proper disposing mind.
15. We are thus left with the evidence of the two eye-witnesses, namely, Muhammad Yousaf and his brother Nauroz. Muhammad Yousaf left his village at 6-15 a.m. on the day of the alleged occurrence with passengers in his tonga for Feshawar and reached there at 7-00 a.m. Thereafter he again left for his village taking passengers in his tonga up to Faqir Killi situated at a distance of one furlong from village Pachagi. When he reached the tonga-stand of Faqir Killi, one of his co- villagers, namely, Khan Zamir came there and asked him to take certain females in his tonga to village Grangai, situated at a distance of four miles from Pachagai. Muhammad Yousaf left with his tonga for village Pachagai. The ladies whom he had to take in the tonga had to be picked up from their house situated close to the hujra of Muhammad Yousaf and on reaching there, the witness parked his tonga near the hujra. He found the deceased busy preparing mud, which was required for the construction of the wall of the shed which was being built for the tonga in his hujra. Nauroz had engaged the deceased on daily wages. It is in the statement of Muhammad Yousaf that Nauroz was not present there at that time. The appellant was coming from the fields towards the village and carried a bundle of grass on his head. The deceased looked towards the appellant and the latter took exception to it. The deceased replied that he was just looking towards that side and not at the appellant. The deceased and the appellant began abusing each other. The appellant took out the sickle Exh. P. 4 from the bundle of grass. Muhammad Yousaf immediately intervened and took the sickle Exh. P. 4 from the hand of the appellant, who picked up the bundle of grass and left for his house. When abuses were being exchanged, Nauroz also came to the spot. Muhammad Yousaf was still waiting for passengers when the deceased told him that he wanted to go to his house to take his meal. The witness asked him not to go lest he might be harmed by the appellant.5 6 The deceased remarked that he had no serious enmity with the appellant and why should he harm him. Muhammad Yousaf then started towards his tonga which was parked at a distance of ten or twelve paces from his house, while the deceased followed him on foot. At that time, Muhammad Yousaf saw the appellant coming in their direction armed with a tamacha. The witness apprehended danger, went ahead and told the appellant as to what was he doing. He tried to snatch the pistol from the appellant and in that attempt got injured with the butt of the pistol on the left wrist. The appellant relieved himself and fired at the deceased from a distance of two or three paces. He fired three shots at the deceased, one went amiss and two hit him. The deceased fell on the ground and the appellant went back to his house. The witness continued that after the incident, people started coming to the spot. He arranged for a cot and placed the deceased in an injured condition on that cot. It was at this juncture that the father of Muhammad Yousaf deceased also reached the spot. The witness appeared before the police on the following morning and not on the day of the alleged occurrence. He was not named by the deceased as an eye-witness in his report to the police and in view of the enmity, it is not possible for us to rely either on the statement of Muhammad Yousaf son of Ghulam Muhammad or his brother Nauroz in the absence of corroboration of their statements from an independent source. We have it in the statement of Muhammad Yousaf that the incident took place inside the Khan lane. The place is surrounded by a number of houses. Muhammad Yousaf said in his statement that the ladies from the surrounding houses were the first to reach the spot. The witness said further that persons who were attracted to the spot also included Amir Sher and Muhammad Amin. It is surprising that the prosecution did not produce any one of them as a witness to corroborate that immediately after the deceased had been successfully shot at, he named the appellant as the culprit.
16. There are different versions with regard to the story of the motive. The deceased in his report Exh.
P. A to the police simply mentioned of an altercation between him and the appellant some time before the occurrence and the reason which he gave for it was that the appellant had blamed him for backbiting. Jumma Khan (P. W. 5) said in the last line of his cross-examination that the fight between the deceased and the accused over a radio set took place at about 7-30 a.m.
Muhammad Yousaf would have us believe that the appellant lost temper when the deceased looked towards him when he was taking a bundle of grass on his head towards his house. We doubt the truth of the story regarding the motive.
The deceased, it appears, was a head strong person. There is another Saleem in the village, but he is son of Lal Mir. Muhammad Yousaf admitted that be too is of the same age as the appellant. The witness continued that Mst. Shamai is the paternal aunt of Saleem son of Lal Mir, but he was unable to deny whether a month prior to the occurrence, aforesaid Mst. Shamai was beaten and thrown in the water channel near the water-mill by the deceased. Muhammad Yousaf son of Ghulam Muhammad was also not able to deny if Yadmir of the village was given a knife blow by the deceased. However, the witness admitted that a year prior to the present occurrence, there was quarrel between one Muhammad Amin and the deceased and the latter had caused knife injury to said Muhammad Amin. The matter was reported to the police, but it was eventually compromised.
17.We have decided not to rely on oral dying declaration. The report Exh. P. A., which we decided to treat as the dying declaration has been considered by us not of much evidenciary value. The eye-witnesses were not named in the report Exh. P. A. which purported to be lodged by the deceased himself. The injury found on the person of Muhammad Yousaf son of Ghulam Muhammad was a healed scratch not exceeding 1/6" on dorsal aspect of left wrist joint in no way corroborated his statement that he sustained it while snatching the weapon from the appellant.
The mere fact that on the shirt of this witness, there was a stain of blood is insufficient to prove that he was present when the deceased was actually shot at. The possibility of his having gone to the spot later on hearing fire-shots is there and in all probability his shirt got stained with blood of the deceased when he lifted him from the ground to place him on a cot. The entire evidence in the case is tainted and there is no corroboration of it from any confirmatory circumstance or by an independent witness. We, therefore, do not consider it safe to maintain the conviction of the appellant, particularly when he has been given an irrevocable sentence.
The abscondence, by itself, is wholly insufficient, in the absence of any other evidence connecting the appellant with the commission of the crime, to hold that the appellant is responsible for the death of Muhammad Yousaf. Since we have not relied on the prosecution evidence in this case, we need not discuss the statement of the solitary witness produced in defence.
18.In the result, we accept the appeal, set aside the conviction and the sentence of death passed on Saleem alias Muhammad Humayun and order him to be acquitted. He is in jail and we direct that he be set at liberty forthwith, provided always that his detention is not required in connection with any other case. The death sentence is not confirmed. P D 1966 SC 264 1969 SCM R 85 1969 P Cr, L J 724 AIR 1935 Lah. 94 AIR 1924 Lab. 253 (1) AIR 1926 Born. 513