' This appeal under section 410 of the Code of Criminal Procedure has been filed by appellant Ghulam Muhammad s/o Abdullah against the judgment, dated 19-5-1984 of the learned I Additional Sessions Judge, Jacobabad, whereby the appellant was convicted under section 302, P.P.C. For the murder of Mst. Bakhtawar sister of complainant Ali Muhammad and sentenced to suffer life imprisonment and to pay a fine of Rs,10,000 or in default to undergo R.I. For another six months. I have heard Mr. Muhammad Hayat Junejo, learned counsel for the appellant and Mr. Nazir Alam who has appeared for the State.
2. On 28-3-1982, Ali Muhammad brother of Mst. Bakhtawar lodged the following F.I.R. At 10-00 a.m.
At Police Station Sadder, Jacobabad:- "That I am a coolie in W-I Railway Department Jacobabad and live alongwith my sister Mst.
Bakhtawar and my children, in the same house. Besides us, there resides Ghulam Muhammad Sarki, on rent in Government Railway Quarter. Few days back, Ghulam Muhammad Sarki was standing in front of our house and my sister Mst. Bakhtawar declared that he was teasing her. I asked him not to stand in front of our house on which he went annoyed and said that, he would see me. Today in the morning, I came to the town, for my work. That at about 0900 hrs. Ghulam Muhammad came to the back side of my house and called me. On his call, my sister Mst.
Bakhtawar daughter of Muhammad Ramzan Kanjoo, came out to whom he said, your brother Ali Muhammad has insulted me and I will fight with him and my sister told him that her brother was not present whereupon, he out of anger, took the knife from the folds of his trousers and started inflicting knife blows to my sister. Her cries attracted myself, Behram khan s/o Allah Bachayo Detho and Menhoon son of Saidad Brohi and others. On seeing us Ghularn Muhammad Sarki ran away towards East. Then I saw that my sister had received the knife injuries on her face, cheek and other parts of body which have bled. On enquiry my sister narrated the above story and I took my sister in a donkey-cart. I have come to report that accused Ghulam Muhammad, on forbidding for standing in front of our house, has inflicted the knife blows to my sister. I have lodged the complaint. Justice may be done."
' The salient facts in the F.I.R. Lodged by complainant All Muhammad are as follows.;-
(i) Mst. Bakhtawar had complained to the complainant (her brother) that the appellant Ghulam Muhammad had teased her and on being reprimanded by the complainant, the appellant got annoyed. This happened a few days prior to the lodging of the F.I.R.
(ii) On 28-3-1982, the day the F.I.R. Was lodged, the complainant came to town in the morning.
(iii) At about 9 a.m. The appellant came to the backside of the complainant's house started inflicting injuries with a knife on Mst. Bakhtawar and her cries attracted the complainant, Behram Khan s/o Allah Bachayo Detho and Menhoon son of Saidad Brohi and others (not named) but on seeing them the appellant ran away.
(iv) On enquiry, Mst. Bakhtawar informed that knife injuries had been inflicted by the appellant.
(v) The complainant took his injured sister in a donkey-cart to the Police Station.
' Contents of the F.I.R. Indicate that either the complainant, Behram Khan and Menhoon had seen the incident or they reached the scene immediately after the injuries had been inflicted and saw the appellant running away. In his evidence before the trial Court, complainant Ali Muhammad, however, states that he had not seen the appellant inflicting injuries upon the deceased but one Abdul Ghaffar had come to him and informed him that his sister had been murdered by the appellant. According to his deposition, P.W. Behram also did not witness the incident as he came on the scene after the departure of appellant, but P.W. Ayoob and Menhoon came on cries and saw the appellant giving blows to the deceased. He also stated that the deceased told him that the appellant had given knife blows to her. It may be observed here that Menhoon was not examined in the trial, as he was reported to have left Pakistan and was residing in Saudi Arabia. He also stated in his cross-examination as follows:- "At the time of this incident, Mst. Bakhtawar was married to one Hassan Magsi. She used to reside with me on her own accord. Mst. Bakhtawar had fought with her husband Hassan Magsi and had, therefore, come to live at my house. Mst. Bakhtawar had married with Hassan Magsi about six months prior to this incident It is a fact that prior to her marriage with Hassan Magsi, Mst.
Bakhtawar was married to one Kaloo Panhwar from whom she had sought divorce through Court. It is not a fact that Kaloo Panhwar and Hassan Magsi used to threaten us that they would take revenge of their insult."
' He had further stated that Mst. Bakhtawar later on died the same day at 2 p.m in hospital.
' On various important aspects of the case, there are contradictions between the report lodged by the complainant and his deposition before the trial Court. In the F.I.R. He represents that he had seen the incident or that he reached the Vardat while the appellant was still there but in his evidence he states that he was not an eye-witness and when he reached the Vardat, the appellant had already left. He names Abdul Ghaffar in his evidence but not in the F.I.R. As the informant. Then in the F.I.R. He states that he had gone to the town whereas in his evidence before the trial Court he deposed that he was working near his house. In the F.I.R. The names Behram Khan and Menhoon but does not name P.W. Muhammad Ayoob, whereas in his evidence the eye-witnesses are Menhoon (not examined in the trial) and Ayoob.Contradictions oetween the F.I.R. And complainant's deposition before the trial Court have been brought out in his cross-examination.
Testimony of the complainant does not inspire confidence.
3. The only eye-witness examined in the trial Court is P.W. Ayoob. He did not implicate the appellant in his deposition. Lie was declared hostile. He was confronted with his 164, Cr.P.C. Statement (Exh. 12) in which he had implicated the appellant. The statement under section 164, Cr.P.C. Of P.W. Ayoob shows that the appellant did not cross-examine Ayoob.
4. P.W. Abdul Ghaffar in his evidence before the trial Court states that on the day of the incident he had seen Mst. Bakhtawar lying dead near the house of a constable and this was about 10 or 11 a.m.
And that after that he went to town and informed the complainant but did not give the names of any culprits. This witness was not declared hostile. As noticed earlier, according to the complainant's evidence, Abdul Ghaffar had named the appellant as the culprit.
' P.W. Behram was also examined. He has not implicated the appellant at all. He stated that he was not examined by the Police. He was also not declared hostile.
5. A.S.I. Habibur Rahman has given evidence about the dying declaration made by Mst. Bakhtawar at the Police Station when she was brought there in a seriously injured state. In his cross- examination he stated that Mst. Bakhtawar was brought in a dangerous condition and her lips were cut and she had phases of unconsciousness intern.Ittantly. He deposed that he did not get her dying declaration recorded. It means that according to A.S.I. Habibur Rahman, he listened to what the injured said or he put questions to her but he did not record what the deceased said.
According to the witness, the deceased was sent to the hospital while she was still alive. However, there is no evidence that she reached the hospital alive. Dr. Nizamuddin, Medical Officer, Civil Hospital, Jacobabad, states that he had received the dead body of the deceased for post-mortem which was performed by him. The prosecution evidence is silent about what happened between the time the injured was sent for medical attention and report by A.S.I. Habibur Rahman and the time when her dead body is delivered to the Medical Officer.
6. The learned Additional Sessions Judge has based the conviction upon the two dying declarations of the deceased--one made to the complainant at the scene of the incident and the other to A.S.I. Habibur Rahman at the Police Station, and the statement under section 164, Cr.P.C. Of P.W. Ayoob. In my view, on these pieces of evidence, under the law, the appellant could not be convicted, in the facts and circumstances of this case. I now propose to consider the admissibility and reliability of these pieces of evidence.
7. First, I will take up the statement under section 164, Cr.P.C.Ayoob, who, as noticed earlier, did not support the prosecution and also did not implicate the appellant in his evidence during the trial.
Learned counsel had relied upon a Division Bench Judgment of this Court in the case of Abdul Hakeem v. State PLD 1982 Kar.
975. In this judgment, after quoting section 265-J of the Code of Criminal Procedure, it is observed at page 980 of report as follows:- "A reading of this section makes it plain that the statement should be recorded in the presence of the accused, the accused should have notice of the recording of such statement, and he should also be given an opportunity of cross-examining the witness. On the fulfillment of these conditions, the statement should be brought on record, within the discretion of the Court Such discretion should be exercised if in the process of recording such statement sanctity attaches to it, as normally such statements are recorded only in cases involving capital sentences. The mere fact of a Police Officer stating that he had put the accused on notice would not be sufficient. Such notice should be in writing, and should also state that he has a right to cross-examine the witness.
Normally in these circumstances, an accused knowing the peril in the process would attempt to engage an Advocate and ask for copies of the Police statements in advance, so as to effectively cross-examine the witness. Non-compliance with the spirit underlying section 265-J, exposes the statement to serious criticism.After all, if an accused is suddenly marched of the Court and asked to cross-examine a witness, be cannot effectively exercise his right under the law. It is also a cardinal principle of law enshrined even in the Constitution that every person has a right to be defended by an Advocate of his choice. In these circumstances, if no proper notice is given, failure of justice might inevitably result, and the Court has to be on caution. Applying these tests to the instant case, we find that no notice in writing was given to the appellants before recording the statements under section 164, Cr.P.C. And there is absence of mention even in the Police diary, as, according to the Investigating Officer he did not even mention this fact in the Police diary.
Admittedly, the accused were not represented, and therefore the right of cross-examination had not been effectively exercised. The learned Additional Sessions Judge, has admitted the statement under section 164, Cr.P.C. Without adverting to this aspect of the case.
When the statement of P.W. Ayoob made under section 164, Cr.P.C. Is tested in the light of the above principles laid down in PLD 1982 Kar. 975, it is found that in the circumstances of this case much reliance cannot be placed on such statement. No notice in writing had been given to the appellant before such statement was recorded.Neither the police diary nor the statement of the Investigating Officer indicates that any verbal notice in this regard was given to the appellant. Admittedly the appellant was unrepresented at the time the said statement of P.W. Ayoob was recorded under section 164, Cr.P.C. The said statement only shows that the appellant was present. Conditions for admissibility in evidence such statement under section 265-J of the Code of Criminal Procedure as laid down in PLD 1982 Kar. 975 had not been satisfied. The learned Additional Sessions Judge, in the circumstances, erred in placing reliance on the statement under section 164, Cr.P.C. Of P.W.
Ayoob.
8. The dying declaration made by the deceased to A.S.I. Habibur Rahman may now be considered.
This statement is alleged to have been made at the Police Station in the presence of her brother.
Reference here may be made to the case of Nazim Khan. v. State 1984 SCMR 1092 relied upon by the learned counsel for the appellant. In this judgment the Supreme Court referred to the rule of caution to be applied in cases of such dying declaration and made reference to three earlier decisions of the Supreme Court where such rule of caution was indicated. These three decisions are:-
(i) Ghulam Farid v. State, PLD 1966 SC 264.
(ii) Usman Shah v. State 1969 P Cr. L J 317.
(iii) Wahiduddin v. Allah Ditta 1977 SCMR 72.
' In the case of Ghulam Farid v. State the Supreme Court had observed as follows:- "It is often found that a dying declaration made elsewhere than at a Thana is more worthy of reliance than one made in the presence of the police where also the relative who have brought the injured man to she Thana are generally present and usually cannot be prevented from putting a prepared case through the mouth of the deponent."
' Then in Wahiduddin v. Allah Ditta, this rule of caution was reiterated in stronger terms where it was observed as follows: "As this Court has held in Ghulam Farid v. The State a dying declaration recorded at a police station, when the relatives who have brought the injured there are present, is always suspect and certainly less worthy of credence than one recorded by a Magistrate after excluding the relatives."
The dying declaration alleged to have been made by the deceased to A.S.I. Habibur Rahman in the presence of complainant (brother of the deceased) is, therefore, not a very reliable piece of evidence. Then it was not recorded by the Police Officer. No reason has been given why it was not recorded. But the main reason why no reliance ought to have been placed on such dying declaration is the evidence on record which indicates that perhaps Mst. Bakhtawar had become unconscious on receiving injuries found on her body or in any case she was in no condition to make any coherent statement after receiving such injuries. A.S.I. Habibur Rahman has stated in his cross-examination, as observed earlier, that "injured had phases of unconsciousness intermittently." He also admitted that Mst. Bakhtawar had injuries on her face and head. Then the medical evidence shows that very grievous injuries had been inflicted on the person of Mst.
Bakhtawar and her skull had been fractured at several places and her nosal bone had also been fractured and her lips cut. This is what Dr. Nizamuddin, Medical Officer, Civil Hospital, Jacobabad, who had performed post-mortem of the deceased, had to say about the injuries:- "I startd the post-mortem examination at 2-00 p.m. And finished it at 2-45 p.m. On the same date.
On external examination I found the following injuries on her person:-
(1) An incised wound 8 ems x 2 ems x bone deep on front of nose with fracture of nasal bone and missing of upper central incisor tooth and right canine tooth.
(2) An incised wound 1 c.m. x 3 c.Ms. At right side of face x muscle deep.
(3) An incised wound 10 c.Ms. x 2 c.Ms. x muscle deep from left temporal region to left zygomatic region with fracture of left temporal bone.
(4) In incised wound 3 c.Ms. x 4 c.m. At left parietal region with fracture of left parietal bone.
(5) An incised wound 8 c.Ms. x 2 c.Ms. x scalp deep horizontal from left to right parietal regions.
(6) An incised wound 3 c.Ms. x 1 c.m. x scalp deep x left temporal region.
(7) An incised wound 6 c.Ms. x 2 c.Ms. Scalp deep at right occipital region with fracture of right occipital bone.
(8) An incised wound 8 c.Ms. x 2 c.Ms. With cut of phalageal bones of little finger and matacarpal bones of middle and ring fingers.
(9) An incised wound 3 c.Ms. x 4 c.m. At front of left forearm.
' On internal examination I found the following damages: ' There were fractures of left temporal, left pariental and right occipital bones, haematoma of brain and intra-cranial haemorrhage present. Blood vessels were injured at the site of injuries. There were fractures of nasal bone upper central incisor tooth right upper canine tooth, phalageal bone of little finger and metacarpal bones of middle and ring fingers."
' Then in cross-examination the Medical Officer stated that "it could be that the victim after receiving injuries, from injuries Nos. 3 to 7, lost her senses, as soon as she received the injuries mentioned above because these injuries are head injuries."
I am, therefore, of the view that not much credence could be given to E the dying declaration- alleged to have been made to A.S.I. Habibur Rahman.
9. Dying declaration made to complainant Ali Muhammad is also suspect. I have already observed that complainant's evidence did not inspire confidence as he had made contradictory statements on material points. Then from the condition of Mst. Bakhtawar on account of injuries received by her, indicates that she was hardly in a position to make a coherent statement if at all it could be believed that she was conscious.
9. The three pieces of evidence, on which the conviction of the appellant has been based, are very weak pieces of evidence, if at all these could be admitted against the appellant. There is hardly any evidence on record on which the appellant could have been convicted. This appeal is to be allowed.
10. Criminal Appeal No, 93/84 is allowed and the judgment dated 19-5-1984 of the learned I Additional Sessions Judge, Jacobabad, in Sessions Case No, 108/82 is set aside. The appellant Ghulam Muhammad son of Abdullah Sarki is ordered to be released forthwith if not required in any other case.