MUHAMMAD HALEEM, J.-Appellant Taurgul (50) son of Gul Sher was tried for the murder of Syed Sardar Hussain Shah (25) by the Additional Sessions Judge, Karachi and convicted under section 302, P. P. C. And sentenced to transportation for life. He has appealed to this Court against his conviction.
2. The incident is alleged to have occurred at 3-30 p.m. On 7th April 1966 in the courtyard of the quarter of the appellant situated in the locality known as Jalalabad in Karachi city; the deceased was a tenant of a room of this quarter. The prosecution case is that the deceased was employed in Oderal Industries in Osmania Colony. At about 3-30 p.m. On 7tb April 1966 he left the place of his, employment and went to that quarter to meet the appellant. On reaching there he saw the appellant's brother, Taj Muhammad, and to or three other persons with the appellant in the courtyard. They then talked together and in the midst of the conservation the appellant got infuriated, took out a knife and stabbed "the .Deceased on the left side of his chest, upon which the deceased fell down. He was then carried to the hospital by Taj Muhammad.
3. At 16-30 hours a telephone message was received, from Dr. Muhammad Iqbal, Casualty Medical Officer, Civil Hospital, that one Sardar Husain Shah had been brought to the hospital with knife injuries and that action be taken. This report was recorded in the station diary (Exh. 64) of police station Golimar by Muhammad Khan A. S. 1. He then went to the hospital where he met Muhammad Ali S. I. Who was there in connection with the investigation of an accident case and apprised him of the contents of the report. This Sub-Inspector then recorded the statement (Exh. 24) of the deceased at about 5-30 p.m. The deceased was then conscious and had signed his statement in the presence of Dr. Muhammad Iqbal, the Casualty Medical Officer. This statement was handed over to Muhammad Khan A. S. I. Who took it back to the police station and incorporated it in the 154 book (Exh. 25). A case was there--upon registered under section 307, P. P. C. Against the appellant.
At about 20-30 hours the same night, information was conveyed by Dr. Muhammad Iqbal that Syed Sardar Husain Shah had expired. This information was recorded in the station diary at serial No. 92 (Exh. 19) and the offence was then altered to one of murder. A copy of this report then sent to Muhammad Ali S.I, who prepared the inquest report and left the dead body in the custody of a police constable for post-mortem examination. At about 8-30 p.m. Mirza Liaquat Ali Beg S. H. O.
Golimar, while on patrol duty, also received information about the murder. He went to the place of incident and found the house of the, appellant locked. He then left for the hospital and instructed, Moula Jan, another S. I. Who was with him to search for the appellant. He met Muhammad Ali S. I. In the hospital who apprised him of the steps he had taken in the investigation of the case. Mirza Liaquat Ali Beg then recorded the statements of Sharif Husain, Husain Ghulam, Sadat Ali, Syed Anwar, Hasan Shah, Gul Badshah and Gohar Husain. He returned to the place of incident and after inspection prepared a mashirnama (Exh. 13) in the presence of mashir Malik Fazal Muhammad (P.
W. 5). He also examined the residents of the locality, namely Muhammad Shafi, Samandar Khan, Ali Muhammad, Ayub, Kulsum Begum, Pasham Khan and Lais Khan. He also instructed Pasham Khan, another brother of the appellant, to search out the appellant. On the following day Pasham Khan, produced the appellant at the police station and he was then arrested. On 15th April 1966 Taj Muhammad was also examined.
4. The autopsy on the body of the deceased was performed by Dr. M. S. A. Farooqui. He noticed one stitched wound on the left side of the chest, one surgical incision and one incised wound on the dorsal surface of the left hand on the ulnar border. In his opinion the injury on the chest was sufficient to cause death in the ordinary course of nature and that the to injuries were caused by a Sharpe-edged penetrating weapon, such as a knife. He had also produced the medico-legal report (Exh. 39) of Dr. Muhammad Iqbal who, according to him, was then a Casualty Medical Officer in the Civil Hospital and was at that the probably in Saudi Arabia. He had identified his handwriting and signature on this report.
5. In defence the appellant denied the prosecution case and even the ownership of the quarter, in the courtyard of which the deceased was said to have been stabbed by him. He showed complete ignorance of the incident and stated that he never resided there and at the stated the he pleaded that he was in his hotel in Landhi. He ascribed his false implication at the instance of police. The allegation against the witnesses was that they were the friends of the deceased and his co- villagers. Against Husain Ghulam he further alleged that he was a professional witness and that he was released from jail "yesterday". He further claimed that there were to other persons of the same name in Nazimabad and that he did not know which one of them had stabbed the deceased. . He led no evidence in defence.
6. The trial Court disbelieved Husain Ghulam, Sadiq Ali, Sharif Hasan and Syed Anwar, whose statement was brought on record in the trial Court under section 33 of the Evidence Act as he was not then available to give his evidence in Court. The evidence that was left over after discarding the ocular evidence was the dying declaration (Exh. 24) of the deceased recorded by Muhammad Ali S. I. In the hospital. The trial Court rested the conviction of the appellant on this dying declaration as in this opinion it was genuine and true. The trial Court also felt that it was corroborated by the abscondence of the appellant for one night and a part of the day before he was produced at the police station. In the result, the appellant was thus convicted.
7. The direct evidence with regard to the occurrence was furnished by the evidence of the eye- witnesses, namely Hussain Ghulam, Sadat Ali, Sharif Hussain and Syed Anwar. We have examined their evidence anti eve feel that their evidence is on the same footing and was rightly disbelieved because of serious doubts about their presence at the relevant the. Husain Ghulam and Sadat Ali resided together in the same quarter about a furlong away from the quarter of the appellant.
Husain Ghulam had stated that ha had gone to take tea in a hotel with Sadat Ali at the relevant the when the appellant, who was then in the courtyard of his quarter, called out the deceased, who came there. The appellant asked him to vacate the house, upon which the deceased told him that he would do so whenever he would get another house. Upon this reply there was exchange of hot words between them and the appellant took out a knife from the folds of his shalwar and stabbed the deceased on his left chest; thereupon the deceased fell down. The appellant then ran away. He was pursued by him, Sadat Ali and Sharif Husain. The appellant could not be apprehended and when be and the other witnesses returned they were ,told that the deceased had been taken away to the hospital by Taj Muhammad in a taxi. Thereafter he and Sadat Ali went to their house for taking tea and at 6-30 p.m. They proceeded to the hospital to see how the deceased was. Sadat Ali, on the other hand, had stated that he and Husain Ghulam had gone to the quarter of the appellant and that after the incident and the pursuit they bad gone to the quarter tee collect money. As for the going to the hospital he has supported Husain Ghulam that it was 6-30 p.m.
When they had left for the hospital. There is, therefore, a discrepancy between the evidence of these to witnesses on the point as to how they had come to the quarter of the appellant. There is also no reason why Husain Ghulam would' come to the quarter of the appellant if he had gone along with Sadat Ali to take tea in the hotel. There is also no reason why Sadat Ali would go to the appellant's quarter- at that crucial the accompanied by Husain Ghulam if it is to be accepted that they had not gone to the hotel. There appears to be no purpose for their going to the quarter of the appellant. Their presence, therefore, can only be explained if we were to accept that it was a mere chance visit. This in our view was highly improbable. There is also the discrepancy between their evidence on that point that Husain Ghulam had said that they had gone to their quarter for taking tea while Sadat Ali has come with the story that he and Husain Ghulam had gone to collect money.
If these to witnesses were known to the deceased and the incident had taken place in their presence, there was also no reason to wait till 6-30 p.m. Without lodging a report at the police station which was about a mile or a mile and a half away even if we were to accept their explanation that they had returned to their quarter either for taking tea or for collecting money. The reason, therefore, of their returning to the quarter appears to us to be unconvincing and we feel that it was a cooked up explanation. Serious doubt was also cast as to the actual identity of Hussain Ghulam. It was put in his cross-examination and admitted by him that he yeas a Chowkidar in Bawani Textile Mills. He was confronted with the identity card containing his photograph (Exh. 60) which was admitted by him to be his in that card his name was entered as Asghar Husain son of Muhammad Ali.
It was suggested to him that he was not Husain Ghulam son of Alibaz but Asghar Husain son of Muhammad Ali, but lie denied the suggestion 'that lie had wrongly given his name. To clear this ambiguity the trial Court examined Muzaffar Husain an officer of the said mill, as a Court witness.
He confirmed that this Husain Ghulam, now in Court, was employed as Asghar Husain in the mill and that he was known as Asghar Husain. It was therefore, obvious that the name and parentage that he had given in Court was a different one and that it did not tally with the name and parentage in the identification card. What was the motive in doing so is not clear; may be that one Husain Ghulam son of Alibaz was another person, whom he mad have personated. Husain Ghulam in his re-examination produced a ration card (Exh. 16-A), at identification card (Exh. 16-B), the certificate of Tahsildar Karram (Exh. 16-C) and a certificate of his association (Exh. 16-D) and in each of these four documents this name of Husain Ghulam was mentioned but neither of them had a photograph of Husain Ghulam. It was, therefore not possible to get a confirmation of his identity in the absence of the photograph. These documents are, therefore, not conclusive to establish that his name was Husain Ghulam. All this appears. To us to be suspicious and for this reason as well we would not attach any weight to his evidence.
8. There is also a discrepancy with regard to the presence of blood on the ground. Husain Ghulam had asserted that the earth was soaked with blood while Sadat Ali had said that there was no blood on the ground. Malik Fazal Muhammad, the mashir of the. Wardat,-also does not support Husain Ghulam with regard to the presence of blood. His assertion, therefore, that there was blood was false. It is also doubtful if Sadat Ali had seen the occurrence as his claim was that Husain Ghulam was 'with him. We have discounted the presence of Husain Ghulam and we would not also accept the claim of this witness that he was with him and had seen the incident, for we consider that he has not given any good reason for having gone to the quarter of the appellant along with Husain Ghulam and his subsequent conduct is not of a man who would react in the manner, in which he has also acted after the incident. The third eye-witness is Sharif Husain. He was not a resident of the locality anti lived at Mauripur. No reason has been given by him as to why he .Had come to visit the deceased at that the. His presence is, therefore-, extremely doubtful. Even Syed Gohar Husain has not confirmed his presence in the hospital though this witness has stated that he had gone to the hospital after having waited for half an hour for a taxi after the incident. He also failed to lodge the report at the police station and also to explain satisfactorily what he did after the incident till such the in the night when his statement was recorded by the police officer. His presence, therefore, appears to us to be extremely doubtful.
9. The fourth and the last eye-witness is Syed Anwar, a bus driver, who claimed to have seen the incident while ht was making purchases in the shop of Mannan, opposite to the appellant's quarter.
This witness went to the hospital at 7-30 p.m. And also did not inform anyone about the incident.
He did not know the appellant. It were the children of the locality who had told him his name. He was also not aware of the names of the prosecution witnesses, nor was be, acquainted with them.
He was not put to any identification ,test and it was only in Court that he identified the appellant to be the same person whom he had seen running out of the quarter and being chased by the prosecution witnesses. His statement was also recorded in the hospital at about 10 p.m. The trial Court has not admitted his evidence recorded in the, committal Court under section 33 of the Evidence Act as it was not satisfied with the explanation of the process server that this witness had gone to Iran and there was no likelihood in the near future of his return. The report of the process server was based on the information given by Husain Ghulam and Sadat Ali who were disbelieved by the trial Court and in the circumstance it did not feel inclined to place any reliance on the information supplied by them to the process server. We have no reason to disagree with this view of the trial Court. Even otherwise we are satisfied that his evidence could not have been relied upon because his presence at the place is not established by any other evidence. He claimed to have talked to the deceased while he was seated in the taxi yet the deceased makes no reference of it in the dying declaration. His conduct in keeping silent after having seen the incident is also of particular significance, and is in line with the conduct of other prosecution witnesses. It certainly weighs against his claim of being an eye-witness. He was not even put to an identification test and it is also doubtful whether his identification of the appellant in Court was because he had seen and had kept his impression of the features of the appellant or it was at any body's Plantation after the incident. We would not, therefore, place any reliance on his evidence even if we were to read his previous statement as evidence in the trial Court.
10. It appears to us that the first three witnesses, namely Husain Ghulam, Sadat Ali and Sharif Husain were also from the same place as the deceased: They must have got information of the murder of the deceased and had then gone to the hospital. Similarly Syed Anwar must also be an acquaintance of the deceased and would have gone to the hospital on getting the information that he had expired. Though he claimed to be a resident of another place yet we are not satisfied that this circumstance alone will wake him a disinterested witness of such a nature that implicit reliance could be placed on his evidence. Besides the presence of these eye-witnesses has not been mentioned in the dying declaration and we would, therefore, be reluctant to consider them as eye-witnesses for this reason as well.
11. There now remains the evidence of Syed Gohar Husain and the written dying declaration (Exh.
24) of the deceased. Syed Gohar Husain is the father of the deceased. He also lived with him in the same quarter of the appellant. He has stated that the deceased had refused to vacate the room and it was because of this refusal that there was a dispute between them; there was also a talk between the deceased and the appellant 3 or 4 days back or the same subject. This witness was in private service and had returned to the quarter at 4-30 p.m. When he learnt about the incident. He then went to the hospital and on inquiry what the deceased told him is thus stated in his evidence: "I enquired of Sardar Husain as to who had injured him and he replied that Taurgul had stabbed him. He told the that he had been stabbed at about 3-30. He also told me that he was stabbed on account of the house. "He told me that he had not refused (to vacate) the house but had promised to vacate when he got the other."
This talk between him and the deceased must have been before the dying declaration was recorded in writing by Muhammad Ali S. I. As it is clear that at that the no police officer had come.
The only question put in his cross-examination against the snaking of the oral dying declaration was that when he reached the hospital, the deceased was in the operation theatre. This sugges-- tion has been denied. There is no truth in the suggestion put to this witness, for there is no material on record to challenge the claim of this witness that he was not In the hospital at the stated the or that when be reached there the deceased wasp in the operation theatre. There is also no indication that the deceased was unconscious. There was, therefore, a certainty that the deceased would hate spoken to his father and apprised him of the incident. The written dying declaration Exh.
24) followed the oral dying declaration and it is duly signed by Dr. Muhammad Iqbal, the Casualty Medical Officer, who had examined the deceased soon after his arrival in the hospital, Since the conviction rested solely on this dying declaration it will be useful to reproduce it here :-- "That I (Eyed Sardar Husain Shah). Work in Oderal Industries, Osmania Colony and today at about 3-30 p.m. I had gone to meet Taurgul son of not known, and Jalalabad in whose house I am tenant.
His brother Taj Muhammad and 2-3 more persons were present at his house. We both started talking among ourselves and during conversation Taurgul got infuriated and being enraged he all of a sudden took out knife and attacked at left side which hit my left rib, due to which I became seriously injured and fell down. His brother Taj Muhammad has brought me here to the hospital. My complaint against Taurgul is causing me injury with knife. This much is my statement."
12. Muhammad Ali S. I. Had recorded this dying declare--tion after taking permission from Dr. Muhammad Iqbal. It is, therefore, obvious that the deceased must have been conscious, for otherwise Dr. Muhammad Iqbal would not have given permission. The defence has not been able to establish that the deceased could be unconscious. The attempt appears to be to show that Muhammad Ali could not have been at the hospital at the the stated by him. It is not conceivable that he would have given a false excuse for being present at the hospital. Additionally his presence is also confirmed by the signature of Dr. Muhammad Iqbal on the There also the evidence of Muhammad Khan to the hospital at about 5-30 p.m. Ali of the contents of the report recorded Roznamcha. Great emphasis was laid by on the fact that Muhammad Ali had Khan at 4 p.m. While the report (Exh. 20) at 16-35 hours and that Muhammad Khan to the hospital and met him at 5-30 p.m. Not regard this discrepancy as material for the given by Muhammad Ali must be either or lapse of memory. The fact still remains did record the statement and that to after from Dr. Muhammad Iqbal. The dying therefore, be concocted as suggested by the In this context it was, also urged that there was of the doctor on the dying declaration. This is not requirement. We consider it to be enough, that signature on it. Stress was also laid on the fact that declaration was transcribed in the 154 book after hours. The delay even if there was, is the the that was material was when the dying recorded and not when it was transcribed: Additionally, no question in cross- examination was put to Muhammad Khan as to why he took such a long the to transcribe the dying declaration to the 154 book. In the absence of such an explanation we would not consider this objection to be material, for if such a question had been put to Muhammad Khan, he would have been in a position to explain the delay.
13. It was next urged that in the dying declaration the assailant was referred to as "Taurgul son of not known resident of jalalabad". It is, therefore, not clear whether the present appellant could be the same Taurgul, for there can be many Taurguls in the locality and in the absence of his parentage it is snot possible to fix the identity of the, appellant. In support of this plea the appellant had stated in his defence that there were to other Taurguls in Nazimabad but led no evidence to establish this fact. He had also disclaimed the ownership of the quarter and the learned counsel relied on the fact that household articles were not found in the quarter at the the of inspection in support of it. We are, however of the view that there is no doubt with regard to the identity of the appellant. On this point there is the evidence of Malik Fazal Ahmad who knew the appellant and that; in his evidence he had confirmed that it was the appellant who was the owner of this quarter where the incident had taken place. Syed Gohar Husain, the father of the deceased, has stated that he lived in one of the room of this very quarter with his son which was rented, out to the deceased.
There has been no challenge to these assertions of the to witnesses. The quarter was inspected after a couple of hours and it was possible to remove the household articles as it continued to be in the possession of the appellant. The absence of the articles cannot he emphasised to support his plea that he was not residing in the quarter or that he was not its owner. There is nothing on record to indicate that there were persons of his name in the locality. It is, therefore, clear that when the deceased referred to his being a tenant of Taurgul, he was referring to the appellant and to no other person of that name. There is, therefore, no substance in the above contention.
14. Lastly, the defence counsel urged that the dying declare--tion (Exh. 24) was not true because the deceased had mentioned the name of Taj Muhammad who had brought him to the hospital while in the medico-legal report (Exh. 39) Dr. Muhammad lqbal has mentioned one Sher Zaman as the person who had brought the deceased. We are not inclined to accept this contention as well; for there is nothing in the evidence to exclude the possibility, that not more than one person had taken the deceased to the hospital. It is very likely that Taj Muhammad, who had gone along with the deceased in the taxi, may not have appeared before the doctor and only Sher Zaman must have gone before him and therefore his name had been mentioned. There is another reason in support of this explanation, for Taj Muhammad may have thought that questions about the incident were likely to be put and therefore being a brother of the deceased he must have evaded to come before the doctor. No conclusion can, therefore, be drawn from that fact that the dying declaration was at least not truthful in one respect. We have not found any infirmity either with regard to-the making of the oral dying declaration or the written one. The deceased had no enmity with the appellant and there was no. Reason for him to falsely implicate the appellant. It is also not possible to accept that he would e let of the real culprit and substitute the appellant in his place.
There is also the evidence on record that there was a dispute about vacating the room. The deceased had stated that he had come from his work specially to meet the appellant. It must be in the context that there must have been an exchange of hot words between them and the resultant attack on him all of a sudden. Even though he has not mentioned in the dying declaration (Exh. 24) about the details of the talk yet in the context of his statement we are inclined to hold that it must be on that subject. The oral dying declaration also gives an indication of it. There is also no inconsistency in the to declarations, for the oral dying declaration has only brought out in detail the subject under discussion at that the. One feature of some significance is the absence of blood on the ground. This can be explained on the hypothesis that the blood may not have come out with a gush to fall on the ground but may have been obstructed by the clothes which the deceased was wearing. The additional circumstance is the rapidity with which the deceased was removed to the hospital. It may be possible that there was not sufficient the for the blood to diffuse out of the clothes and fall on the ground. The absence of blood, therefore, from the ground is not sufficient for us to conclude that the incident had not occurred in the curtyard of that quarter.
15. The trial Court has relied on abscondence of the accused for one night and a part of the day as a circumstance corroborating the dying declaration. We have not accepted the explanation of the appellant that he did not own the quarter. He has also not established that he had a hotel in Landhi. There was, therefore, no reason for him to be absent from his quarter. It is also in the evidence that he was produced by his brother at the police station. His explanation that he himself appeared at the police station the next day has also no support from any material on record: We are, therefore, inclined to believe that his conduct was not consistent with his innocence. We would also take this circumstance into consideration as corroborating the dying declaration. We are of the view that the deceased did make the oral dying declaration to his father Syed Gohar Husain.
Subsequently, his statement was recorded by Muhammad Khan S. I. P. In this statement the deceased had implicated the appellant as his assailant. We have no reason to doubt the making of these to statements and we consider them to be a straightforward account of the incident. They are true and genuine and we would regard them as conclusive to establish the guilt of the appellant beyond a reasonable doubt. We would, therefore, uphold the conviction, maintain the sentence imposed on the appellant and dismiss his appeal.