' Abdul Ghafoor alias Ghafoori resident of village Jhaidu, Police Station, Kahna, was convicted by the learned Additional Sessions Judge, on 23-6-1981, under section 302, P.P.C. And sentenced to imprisonment for life and a fine of rupees five thousand or in default in payment of fine to undergo R.I. For two years. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased.
Feeling aggrieved of the said judgment, Abdul Ghafoor alias Ghafoori has filed the present appeal.
2. The case was registered on 9-2-1981 at 11-45 a.m. At Police Station Kahna, on the statement of Shahadat Ali, who succumbed to the injuries on the following day. It was disclosed by Shahadat All that on 9-2-1981 at 11-30 a.m. Abdul Ghafoor caused him injuries with knife near the shop of Khushi Muhammad Barber and the occurrence was witnessed by his brother Rashid Ahmad (P.W.11) and Muhammad Mansha (P.W.10). About the motive he stated that four/five months ago. Abdul Ghafoor appellant had grappled with Rashid Ahmad P.W., as the latter had stopped the former from passing near his house on tractor with a loud tape-recorder. The statement of Shahadat Ali Exh.P.K. Was recorded by Muhammad Aslam Sub-Inspector. After preparing the injury statement, the Sub-Inspector sent Shahadat All to General Hospital, Lahore, under the care of Badi-uz-Zaman Constable. The Sub-Inspector took into possession blood-stained earth from near the shop of Khushi Muhammad Barber and sealed it into a parcel. On the following day, Dr. Azhar. Incharge Ward No, 14, General Hospital, Lahore, conveyed information at the Police Station on telephone that Shahadat All had expired. Report No,28 was recorded to this effect. Offence under section 307, P.P.C.
Was converted to 302, P.P.C. The Sub-Inspector reached hospital and prepared the inquest report.
The dead body was sent for post-mortem examination. The Sub-Inspector took into possession the Chadar of the deceased. He arrested the appellant on 11-2-1981 and recovered blood-stained knife from his Dub. The knife was sealed into a parcel. The memo. Was attested by Nazeer Ahmad (P.W.1) and Bashir Ahmad (not produced). The knife was found to be stained with human blood. The appellant was challaned after investigation.
3. The prosecution examined thirteen witness in support of the case.
' Dr. Safdar Ali medically examined Shahadat Ali on 9-2-1981 at 10 p.m. And found four incised wounds, one on the right lumber region and three on right middle finger, right finger and right little finger. The injuries were caused with sharp-edged weapon. Injury No,1 which was on the lumber region, was kept under observation while the remaining were simple. The duration of the injuries was about two hours.
' Dr. Muhammad Aslam operated upon Shahadat All and recorded operation note Exh.P.W.13/1. The deceased expired on 10-2-1981 at 4 a.m and the same doctor issued death certificate Exh.P.W.13/2.
' Dr. Tahir Anis conducted autopsy on the dead body on 10-2-1981 at 10-30 a.m. He noticed four injuries on the person of the deceased. Injury No, 3 was on the right lumber region. In the opinion of the doctor all the injuries were ante-mortem and caused with sharp-edged weapon. Injury No,3 was individually sufficient to cause death in the ordinary course of nature.
' Muhammad Mansha (P.W.10) and Rashid Ahmad (P.W.11) were examined as eye-witnesses. They supported the prosecution case. They further stated that the statement of Shahadat Ali Exh.P.K was recorded by the Sub-Inspector at the Police Station in their presence soon after the occurrence.
' Abdul Latif (P.W.9) was produced in Court to state that the statement of Shahadat Ali deceased was recorded at the Police Station in his presence by the Sub-Inspector.
' Nazeer (P.W.1) supported the recovery of blood-stained knife P.1 from the possession of the appellant.
' Muhammad Aslam Sub-Inspector who had recorded F.I.R., and conducted the investigation, supported his investigation.
' Rest were the formal witnesses.
4. Abdul Ghafoor alias Ghafoori appellant denied the prosecution allegation. He did not admit the motive. He attributed the case to enmity because of suspicion of his illicit relations with Mst. Zainab daughter of Zafar, a relative of the complainant party. He professed innocence. He produced school leaving certificate Exh.D.F. He did not examine any witness in defence.
5. The learned counsel for the appellant contended that the prosecution failed to prove the rrotive of this case and must suffer for it, that Muhammad Mansha and Rashid Ahmad P.Ws. Were closely related to the deceased and were interested witness; that both the eye-witnesses were persons of bad character and no reliance could be placed on their testimony, that if Rashid Ahmed had been present at the spot, he would not have been spared as according to the prosecution the appellant had motive against him alone that both the eye-witnesses were chance witnesses, that in the statements both the eye-witnesses recorded under section 161, Cr.P.C. The fact of having attested the recovery memo, of blood-stained earth was recorded which clearly indicated that their statements were recorded at 3-00 p.m. And not at the Police Station, at about mid-day and it was clearly an indication that both the eye-witnesses were summoned from their village subsequently and made witnesses in the case, that the dying declaration Exh.P.K. Was a fabricated document and in fact no statement was made by Shahadat Ali deceased, that the dying declaration could not be relied upon as it was recorded after preliminary investigation and after the facts of the case had been ascertained from the two eye-witnesses; that no sanctity could be attached to the dying declaration as it was recorded in the presence of the two eye-witnesses and the possibility of eye- witnesses having prompted the deceased to make the said statement could not be ruled out, and that the recovery of blood-stained knife had already been disbelieved by the trial Court.
6. There were two parties in village Jhaidu, one was known as Raheema party and the other as Saida party. Each party had committed murders of three persons from the opposite party. Father of the appellant sided Saida party and had appeared once in a case against Raheema party.
Differences between both the parties were patched up due to intervention of one Mian Sahib. The previous differences had come to an end. Trouble started when the appellant passed near the house of Rashid Ahmad P.W. Four/five months before the occurrence on a tractor playing tape- recorder at a loud voice. Rashid Ahmad stopped him and it led to grappling between the two. They were separated by the persons who arrived there. This was stated to be a motive for committing the murder of Shahadat Ali, a real brother of Rashid Ahmad. It was suggested to Muhammad Mansha P.W. That the appellant was suspected of having illicit relations with Mst. Zainab, a daughter of his cousin Zafar.Lt appeared to be a reason for stopping the appellant from passing near the house of Rashid Ahmad P.W., who was also a close relative of Mst. Zainab. From the evidence it was clear that the incident of grappling between Rashid Ahmad and the appellant did take place. In case the prosecution wanted to twist the motive, it could conveniently allege that the grappling had taken place between the deceased and the appellant.
7. Rashid Ahmad P.W. Was a real brother of the deceased whereas Muhammad Mansha P.W. Was a first cousin of the father of the deceased. Both the eye-witnesses were closely related to the deceased. Mere relationship is no ground for rejecting their testimony but on some A other circumstances I would keep their statements out of consideration. It was admitted by Muhammad Mansha P.W. That three theft cases were registered against him. Tie further admitted that two murder cases were registered against him. He was convicted under Martial Law Regulation for keeping an unlicensed revolver. As admitted by Muhammad Mansha, Rashid Ahmad P.W. Was also a history-sheeter of Police Station Kahna and was prosecuted under Martial Law Regulation for keeping unlicensed arms. This evidence proved that both these witnesses had no clean record.
Both of them were residents of village Jhaidu which was at a distance of four or five miles from the place of occurrence. Muhammad Mansha stated in cross-examination that he was examined by the police after the injured had been sent to the hospital. He further stated that he reached the place of occurrence at 3 p.m. He also stated that he was examined by the police regarding the recovery of blood-stained earth. Rashid Ahmad stated that blood-stained earth was taken into possession at about 3 p.m. He further stated that he was not examined by the police at the spot on this aspect of the case but the fact of recovery of blood-stained earth finds mention in the statements of both the witnesses recorded under section 1(11, Cr.P.C. That would clearly show that statements of both the eye-witnesses were not recorded at the Police Station soon after the registration of the case but their statements had been recorded after the recovery of blood- stained earth which took place at about 3 p.m. Since the appellant had motive against Rashid Ahmad P.W. He would not have spared him if Rashid Ahmad had been present at the spot. It is another circumstance which was indicative of the fact that Rashid Ahmad was not present at the spot. It was nowhere mentioned in the F.I.R. In body of the statement of Shahadat Ali or under Karwai police that Muhammad Mansha and Rashid Ahmad had accompanied Shahadat Ali to the Police Station. This circumstance would also cast doubt about the presence of both the eye- witnesses. For the aforesaid reasons, the statements of Muhammad Mansha and Rashid Ahmad shall be kept out of consideration.
8. Now coming to the statement of Shahadat All Exh. P.K., which shall be treated as a dying declaration, there was nothing on the record to suggest that it was a fabricated document. The occurrence took place at 11-30 a.m. At a distance of one furlong from Police Station Kahna.
Statement of Shahadat Ali Exh. P.K. Was recorded at the Police Station at 11-45 p.m. It was recorded without any loss of time. Abdul Ghafoor was named as the sole assailant. The deceased was not a person of bad character. He had no motive to involve the appellant falsely in the case. The statement of Shahadat Ali was recorded by the Sub-Inspector in the presence of Omar Hayat and Abdul Latif. The latter was examined in Court as (P.W.9) and he supported the prosecution version by stating that in his presence the statement of Shahadat Ali was recorded by Sub-Inspector. This witness although resident of another village, had no motive to make false statement against the appellant. He even did not know the parties. He learnt about the parties when statement Exh. P.K.
Was recorded. Muhammad Aslam Sub-Inspector had no axe to grind. He had no hostility against the appellant. He had been living in the house of the appellant. In case the appellant had been innocent, the Sub-Inspector would have helped him. It was suggested to Sub-Inspector that the appellant had complained to the higher officers about the non-payment of rent. This suggestion was denied by the Sub-Inspector. No attempt was made on the part of the accused to bring evidence when the appellant did complain of it to the higher officers. Injury statement Exh.P.L.
Contains the number of the F.I.R. The date of registration of the case and the offence as well.
Shahadat Ali was medically examined on 9-2-1981 at 1-00 p.m. At General Hospital, Lahore. In the medico-legal report Exh.P.D. The number of the F.I.R. Had been reocrded. Badi-uz-Zaman, Constable had accompanied Shahadat Ali to the hospital. These circumstances showed that statement Exh.P.K. Had been recorded at the Police Station as alleged by the prosecution. I have already discussed that the presence of Rashid Ahmad and Muhammad Mansha had not been recorded in F.I.R. Exh.P.K. The statements of both the eyewitnesses have not been accepted by me.
Thus, the question of prompting the dying declaration did not arise. It appeared that the Sub- Inspector had no immediate apprehension of death of Shahadat Ali, otherwise he would have arranged for recording the dying declaration by the Magistrate. After having considered the entire evidence, I hold that statement Exh.P.K. Of Shahadat All was of genuine document and Shahadat.
Ali had made the statement without having been prompted by any person. He had named his assailant correctly against whom he had no motive to make false statement. The dying declaration received corroboration from the medical evidence and from the fact that earlier the appellant had quarrelled with Rashid Ahmad P.W. The statement of Shahadat Ali, although did not require any independent corroboration, received corroboration from medical evidence and the motive.
9. It was suggested to Muhammad Mansha that since Rashid Ahmad who was wanted by the police, was not available, his brother Shahadat was taken to the Police Station who remained there for three/four days. The witness denied the suggestion. It was further suggested to the witness that the deceased slipped away from the Police Station and some other persons having bad character followed the deceased at the instance of the police and those persons caused injuries to the deceased. This suggestion was also denied by the witness. Except for the aforesaid suggestion, which was refused, there was no other evidence to come to the conclusion that some other persons had committed the murder of Shandat Ali deceased. The appellant had not made statement on the lines of suggestion put to Muhammad Mansha P.W. The defence version put to Muhammad Mansha P.W. Was without any basis or substance.
10. The learned Additional Sessions Judge did not sentence the appellant to death for the reason that it was no clear on record as to what had happened immediately before the occurrence. It was a correct approach and I agree with the learned Additional Sessions Judge in the matter of sentence.
11. The net result of the discussion is that the appeal fails. Abdul Ghafoor alias Ghafoori appellant is on bail. He shall be arrested and sent to jail for serving unexpired term of imprisonment. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.