' MUHAMMAD ISHAQ KHAN, J.--Khalid Mehmood alias Babu (48) son of Sirajuddin caste Rajput resident of Mohallah Chamman Chowk, D.I. Khan city has preferred this appeal against the judgment, dated 29-11-1983 of Malik Muhammad Parvez Khan, Sessions Judge, D.I.Khan whereby he was convicted under section 302/148/149, P.P.0 and was sentenced to imprisonment for life and two years' R.I and fine of Rs,2,000 or in default to undergo one year R.I. He was further sentenced to pay compensation worth Rs, 2,000 in terms of section 544-A, Cr.P.C. To legal heirs of the deceased failing which he was to undergo one year further R.I. The sentences under sections 302 and 148, P.P.0 were directed to run concurrently. Alongwith Khalid Mehmood appellant his son Saeed Ahmad (27), Riasat All alias Aslam Goga (34/35) son of Muhammad, Alimuddin (39/40) son of Choudhry Bundu and his son Ayub (18) were also tried by the learned Sessions Judge on the same charges but were acquitted. Din Muhammad son of Haji Bashiruddin caste Rajput of Mohallah Mujahid Nagar D.I. Khan city has also filed criminal revision (No,1 of 1984) whereby he had challenged the order of acquittal in respect of Alimuddin and his son Ayub. He has also prayed for the enhancement of sentence awarded to Khalid Mehmood alias Babu. Since both the criminal appeal and the criminal revision are the outcome of the same incident therefore we would like to dispose them of both through this judgment.
2. Facts of the case succinctly may be narrated thus. On 9-1-1982 at 12.00 noon Muhammad lqbal son of Mian Bashir caste Rajput of Mohallah Mujahid Nagar D.I.Khan city lodged a report (Exh. P.A) in Police Station D.I.Khan, in injured condition, that a short while earlier he came to the shop of Sakhi Jan confectioner and saw Babu son of Sirajuddin armed with knife, Alimuddin son of Choudhry Bundu armed with a dagger, Riasat All alias Aslam Goga armed with a knife and Ayub son of Alimuddin armed with nuckle duster who also came there and immediately Riasat Ali alias Aslam Goga and Ayub aforesaid caught hold of him while Babu accused-appellant and Alimuddin (acquitted-accused) started giving him knife and dagger blows respectively as a result of which he was injured on his belly and left knee. Thereafter the noise attracted Saeed (acquitted accused) who also came there armed with a 'Danda' and gave him blows with the same on his back.
Imamuddin son of Midu Khan and one Malu were alleged to have witnessed the occurrence. All the accused decamped from the spot. Motive for the offence was given as previous fight and litigation.
This report was recorded by Sher Ali Shah A.S.I. (P.W.12) vide F.I.R. No, 8, dated 9-1-1982 of Police Station City D.I.Khan. Since the maker of the F.L.R. Was injured the said A.S.I prepared his injury sheet (Exh.P.B) and sent him to the Civil Hospital for medical treatment. A case under section 307/148/149, P.P.C. Was registered against all the five accused. After recording the F.I.R. Sher All Shah, A.S.I.
(P.W.12) arrested Saeed Ahmad (acquitted-accused) who had gone to the Police Station to enquire about his father Khalid Mehmood (accused-appellant). A.S.I. Also came to know that Khalid Mehmood accused-appellant had also been injured in the transaction and was lying in the hospital. Accordingly he went to Civil Hospital D.I. Khan and found Khalid Mehmood accused- appellant lying in the emergency ward in an injured condition and senseless. Muhammad All brother of Khalid Mehmood who was also present in the hospital and claimed to have witnessed the occurrence lodged a report charging Din Muhammad, Muhammad Iqbal and Farooq for causing injuries to Khalid Mehmood with dagger and knife. Copy of the report of Muhammad Ali aforesaid is placed on the file of this case as Exh.P.Q. The I.O. Also came to know that Muhammad lqbal had succumbed to the injuries sustained by him and accordingly he changed the section of law to one under section 302/148/149, P.P.C. Since Khalid Mehmood was accused in this case, therefore, the 1.0 arrested him as well. He also prepared the inquest report Exh.P.0 of the deceased.
3. Zarif Khan P.W.13 who was posted as S.H.O., D.I.Khan City those days was on duty as the day of occurrence happened to be 'Eid Miladunnabi'. When he came to know about the occurrence he proceeded to the spot and prepared the site plan Exh.P.N. He took into possession one club of 'Kikar' tree P.1 vide memo. Exh.P.G. Which was produced to him by Jamaluddin P.W.10. He also took into possession clothes of the deceased P.2 to P.5 bearing cut marks, smeared with blood, belonging to the deceased, produced before him by F.C. Awal Khan who had brought the same from the Medical Officer. \ The I.O., thereafter, searched the houses of the accused and prepared injury sheet of Muhammad Farooq Exh. P.E. He arrested Risat Ali accused on 10-1-1982 and initiated proceedings under section 204/87, Cr.P.C. Against Alimuddin and Ayub acquitted accused. These two accused however surrendered to the 1.0. On 16-1-1982 and they were accordingly arrested.
After completing the investigation all the 5 accused were challaned to the Court of Sessions Judge, D.I. Khan who per his judgment impugned in this appeal convicted Khalid Mehmood alias Babu appellant as detailed above and acquitted the remaining, four accused.
4. We have heard arguments of M. Sardar Khan and Muhammad Karim Anjum on behalf of the appellant, Mr. Saadullah Khan, Assistant Advocate-General for the State respondent and Mr. Muhammad Ishaq Khan Kundi, Advocate on behalf of Din Muhammad (Petitioner in Cr. Revision No, 1 of 1984).
5. The prosecution case mainly rests on:-
(i) F.I.R.-cum-dying declaration of Muhammad Iqbal alias Bala deceased Exh.P.A.
(ii) The oral testimony of P.Ws. Jamaluddin alias Malu and Imamuddin.
(iii) The evidence of Nasrullah Khan P.W.9.
' Before pondering over the genuineness or otherwise of the F.I.R.Cum-dying declaration it would be of significance to reproduce the medical evidence given by Khalid Aziz Baloch P.W.
1. This doctor had performed autopsy on the dead body of Muhammad Iqbal deceased on 9-1-1982 at 3-00 p.m. And on external examination had found the following injuries on his person:-
(1) One stab wound above the umblicious to the right lateral side 1/2" in length.
(2) One stab wound in the left hypochondrium i,e, left lateral flank of the abdomen 1/2" in size.
(3) One stab wound on the left lower chest 3" laterally and below the left nipple 1/2" in size.
(4) One incised wound on the left knee 1/2" in length.
(5) One stab wound above the left shoulder 1/2" in length.
(6) Bruise at the baek.
' On internal examination thoracic walls, ribs, cartilages. Paricardium, heart abdomenal walls, peritoneum and small intestines were all found injured. Death in the opinion of the doctor had occurred due to the injuries to the vital organs like heart and small intestines resulting in haemorrhage and shock. The time between injuries and death according to the doctor was instantaneous or within half to one hour.
6. In his dying declaration Muhammad lqbal deceased has charged Khalid Mehmood alias Babu (accused-appellant), Alimuddin, Aslam and Ayub (acquitted accused) for causing injuries to him which subsequently proved fatal. First of all it is to be noticed that whether in the circumstances of the case and in view of the statement of the doctor the deceased was in a position to make the report. The doctor has remarked that the death was instantaneous or within half to one hour. Sher All Shah P.W. 12 who had recorded the report of the deceased admitted in cross-examination that at the time when the deceased arrived in the Police Station he was seriously injured and his condition was precarious. The F.I.R. Was lodged at 12-45 noon. Imamuddin P.W.11 has given the time of occurrence as 11-00 a.m. Jamaluddin P.W.10 stated that the occurrence had taken place at 10/11- 00 a.m. The time of arrival of the deceased in injured condition to the Police Station is given as 12- 25 hours. The distance between the Police Station and the spot is hardly two furlongs. From the evidence of Nasrullah P.W. 9 it is clear that the deceased left the spot for the Station in a Rickshaw of his own. In the ordinary course the deceased muM have reached the Police Station within 15 to 20 minutes. His arrival at the Police Station at 12-25 hours even if the time of occurrence is twisted in favour of the prosecution to be 11-00 a.m. There is a delay in lodging the F.I.R. Sher Ali Shah P.W. 12 has admitted that the deceased when came to the Police Station was seriously injured. He has also admitted that the relatives of the deceased were accompanying him when he reached the police station. It has come on record that the deceased was a literate person and in the ordinary course he was expected to have signed the report. On the other hand he has thumb marked the said report. Besides the F.I.R.-cum-dying declaration suffers from other infirmities. As stated earlier the time of recording of the F.I.R. Is given as 12-45 hours. On the other hand Doctor Khalid Aziz Baloch P.W.1 has stated that he had received the dead body in the emergency ward at 12-45 hours. It is not disputed that the Civil Hospital where the emergency ward exists is at a distance of 4/5 'furlongs' from the Police Station. It is thus for all practical purposes improbable rather impossible that the time of recording the dying declaration in the Police Station and the presence of the dead body in the emergency ward should be the same. The perusal of the F.I.R. Would show that figures 12-45 hours have been altered to figures 12-35 hours. This alteration on the part of the I.O. In the F.I.R. Is obvious with a view to conform it with the time given by the doctor. This aspect of the matter caused a serious shadow of doubt on the genuineness of the dying declaration of the deceased. It is in the evidence of the doctor that the deceased was injured so seriously that he would have been in comma even if he lived for some time and did not die suddenly after the receipt of the injuries. In other words the doctor has not certified that the deceased was in a position to make any statement. Moreover it is in the evidence of Sher Ali Shah P.W. 12 and Doctor Khalid Aziz Baloch P.W. 1 that the relatives of the deceased were accompanying him at the time of lodging the F.I.R. And in the emergency room. The possibility, therefore, cannot altogether be excluded that the dying declaration was not free from outer promptness. At the same time it also cannot be excluded from consideration that since the deceased was not in a position to lodge the F.I.R., the same was recorded at the instance of those who were accompanying the deceased in the Police Station and, therefore, the thumb-impression of the deceased was affixed to it. It is an established principle of criminal jurisprudence that the dying declaration if at all it is proved to have been made cannot be made the sole basis for conviction unless it fully satisfies all the essential prerequisites satisfying the mind of a prudent man to believe that it was free from any infirmities. It has been proved on record that Khalid Mehmood alias Babu accused-appellant had also received injuries and his condition was so serious that instead of taking him to the Police Station Nasrullah Khan P.W. 9 a police officer took him to the Civil Hospital. However, no reference whatsoever has been made in the dying declaration by the deceased towards that aspect of the matter. Even if we believe that the F.I.R. Was lodged by the deceased who was then in full senses, he has suppressed material fact and on that score too it can validly be presumed that the deceased was not giving an honest information while making the report. If the deceased could withhold this fact it cannot be believed with regard to the other facts narrated by him. All these factors would lead us to the only irresistible conclusion that no reliance can be placed on the F.I.R.- cum-dying declaration for the safer dispensation of justice.
7. The prosecution has also produced Jamaluddin alias Malu P.W.10 and Imamuddin P.W.11 in support of its case. Both these P.Ws claimed to be present at the spot and to have witnessed the occurrence. Both these witnesses are related to the deceased party. Once they themselves admitted their relationship with the deceased their evidence requires thorough scrutiny. It cannot be disputed that a relative witness is as much trustworthy witness as a disinterested person but to rely on such evidence we have to see whether they have come to Court with clean hands without having any bias towards either of the parties. Jamaluddin (P.W.10) stated in his statement that on the day of occurrence at about 10/11.00 a.m. Muhammad Iqbal deceased came to his shop running and picked up an air pump from his shop; that in the meanwhile he saw Babu Din accused- appellant holding something in his hand and both the deceased and Babu Din grappled with each other; that the deceased was hifting the accused with the pump while the accused was giving blows to the deceased with something which he had in his hand. He stated that accused Babu Din had a Danda' with him which he took from him and so was the pump also taken by him which had fallen from the hand of the deceased. He admitted that there were many people present at the spot busy in separation. He also admitted that both Babu Din accused and Muhammad Iqbal deceased sustained injuries during the scuffle. In cross-examination he admitted that the pump was a big and heavy one. In his Police statement under section 161, Cr.P.C. This witness had stated that after taking the pump from his shop the deceased had crossed the road of the Bazar and reaching in front of the shop of Ali Sher depot-holder challenged Khalid Mehmood alias Babu. He, however, disowned this statement before police in his statement at the trial. He had also stated in his Police statement that he did not know as to who had injured the deceased and that the accused Babu Din was not holding 'Danda' in his hand. In cross-examination this witness even disowned his statement in examinationin-chief that Babu Din accused was having a 'Danda' with him. Imamuddin (P.W. 11) on the other hand stated that at about 11-00 a.m. While he was on his way towards his contractor in order to take money from him he saw Riasat and Ayub (acquitted- accused) having held the deceased while Babu accused-appellant and Alimuddin (acquitted- accused) were giving him beating. In his police statement he, however, had given the reason for going to the Bazar to purchase cigarette and to participate in the 'Eid Milad' procession. In his police statement this witness did not state that Ayub and Riasat had caught hold of the deceased and Alimuddin and Babu accused were giving him beating. While Jamaluddin (P.W. 10) admitted that the deceased was having an air pump in his hand this witness stated that the deceased was totally empty handed. On the other hand in his statement before the police he had stated that he had seen the deceased present in front of the depot of All Sher with a pump in his hands. He disowned his statement before the police that he had identified Khalid Mehmood (accused- appellant) and Saeed Ahmad (acquitted-accused) only. This witness denied the presence of Jamaluddin alias Malu at the spot. He denied to have seen Babu Din (accused-appellant) in injured condition. This witness denied the presence of Muhammad Farooq (abandoned P.W.) at the spot. If one goes in to the statements of Jamaluddin and Imamuddin (P.Ws.) recorded under section 161, Cr.P.C. And their statements at the trial it would appear that both these witnesses have altogether given different versions at the trial as against that before the police. On material points they have contradicted each other. So much so that the established fact of Babu Din (accused- appellant) having received injuries in the transaction is not admitted. The presence of Muhammad Farooq who was arrested on the spot by Nasrullah Khan (P.W.9) alongwith a dagger and his stabbing Babu Din (accused-appellant) is not admitted by these P.Ws. In these circumstances it would be very risky to place any sort of reliance on the evidence furnished by them
8. Nasrullah Khan (P.W.9) had stated that on the day of occurrence after making certain purchases when he was on his way back to the Police Line he saw lot of people having gathered. He alighted from the vehicle and saw some people grappling with one another. He affected separation and apprehended two persons Babu Din and Muhammad Iqbal and started towards the Police Station.
In the meantime Farooq (P.W.) armed with a dagger reached there and stabbed Babu Din. He immediately overpowered P.W. Farooq and arrested him there on the spot and took the dagger with which he had stabbed Babu Din from him besides knife and nuckle duster. Babu Din was sent to the Civil Hospital for immediate medical aid while Muhammad Farooq was taken to the Police Station. According to him Iqbal deceased left in a rickshaw of his own in injured condition. Before we proceed further it would be of much help to give the version of the accused party. While Saeed Ahmad, Riasat Ali,. Alimuddin and Ayub denied the charges Khalid Mehmood (accused-appellant) stated as under in his statement under section 342, Cr.P.C..- "On the day of alleged occurrence, it was Eid Milad-un-Nabi at about 12-00 noon. I was present at my shop in Bhatia Bazar when Iqbal alias Bala deceased alongwith his brother P.Ws. Farooq and Din Muhammad, who are accused in the cross case came in front of my shop and commanded me to come down from the same. I stepped down to inquire as to why I was being summoned, when in the meantime, the deceased took out the dagger and attacked me. His associates Din Muhammad and P.W. Farooq also followed the suit duly armed with daggers and started assaulting me. I warded off the blows with my hands and got injured in the bargain. I was empty handed. Hundreds of people gathered together at the spot including P.W. Nasrullah Khan, S.I., who after having arrived at the scene rescued me from the cultches of my above-mentioned assailants. While I was being guarded by the said A.S.I, P.W. Farooq now abandoned stabbed me from behind ,with the dagger, as a result of which I was further injured seriously and was sent to the hospital for immediate medical aid. P.W. Muhammad Farooq was, however, rounded up alongwith the dagger, the weapon of the offence, a nickle duster (Mucca Petal) and knife at the spot red- handed. I do not know what had happened to the other two i,e, the deceased and his brother Din Muhammad, because the people had swarmed around the spot and no one knew the happening of the event taking place. My other co-accused were not present there at the spot at that time.
They have falsely been roped in due to their close relationship with me and due to our grouse with the complainant party and also with ulterior motive to show us the aggressors, being in greater number, than the number of the complainant party. I do not know, who had injured the deceased Iqbal. He was a disorderly man of desparate character and was involved in many criminal cases, moral turpitude and hurt cases. He had quite a number of his adversaries with whom he had picked up quarrels and was bound down under section 107/151, Cr.P.C. From time to time alongwith his two brothers P.Ws. Farooq and Din Muhammad. May be that some of his enemies had availed the opportunity and inflicted the injuries on the person of the deceased Iqbal and had then slipped away from amongst the mamoth crowd unnoticed. Iqbal deceased could write and sign. The F.I.R.
In this case and alleged to have been made by the deceased himself is in fact the fake one. It bears the thumb-impression and not the signature of the deceased, although he was not an illiterate person. I produce the attested copy of the compromise deed and that of the joint statement of Din Muhammad, Iqbal deceased; and Muhammad Farooq P.W. Made by them in the Court of learned Senior Civil Judge, D.I.Khan in a civil case. Both the said documents are duly signed by Iqbal deceased. The copies are Exh.D.C. And D.D. Respectively. I also place on record the attested copies of some of the F.I.Rs, , judgments and orders etc. Showing the involvement of the deceased and his brothers Din Muhammad and Farooq in different criminal cases. Exh.D.E., is the photostat copy of the III at No,219, dated 25-11-1973 under section 188, P.P.C. Read with section 13, Arms Ordinance against the deceased.
' Note-- (At this stage, the learned Public Prosecutor objected that in accordance with the provisions of Evidence Act, both these documents referred to above are not admissible in evidence as these cannot be placed on the record. Ruling reserved).
' Exh.D.F. Is the attested copy of the judgment of E.A.C/M.I.C., D.I. Khan, dated 23-6-1980, whereby the deceased was convicted under section 11 of the Prohibition of Enforcement of Hudood Ordinance, 1979 and was sentenced to suffer one year's R.I. Exh.D.G. Is the attested copy of III at No,47, dated 26-3-1976 under section 324, P.P.C. Against the deceased. Exh.D.H. Is the attested copy of the judgment, dated 8-2-1977 passed by M.I.C., whereby the deceased was convicted under section 188, P.P.C. Read with 13, Arms Ordinance and was sentenced to pay a fine on each count. Exh.D.I. Is the attested copy of extract of the order of the Lawyer Magistrate IInd, D.I. Khan, dated 27-2-1976 whereby the deceased was convicted under section 6, Gambling Ordinance and was sentenced to pay a fine of Rs,150. Exh.D.J. Is the attested copy of the extract of the order, dated 23-2-1972 passed by Senior Civil Judge, D.I.Khan whereby the deceased was acquitted in a case under section 307, P.P.C. Exhs.D.K. To D.T. Are the attested copies of the extracts of security proceedings initiated against the deceased and his brothers named above under section 107/151, Cr.P.C., relating to different disputes from time to time. Exh.D.U. Is the attested copy of complaint under section 107/151, Cr.P.C. Instituted in Court, because P.W. Farooq had stolen the amount of Rs,4,000 of one Safdar Hussain about which the investigation had also taken place and Exh.D.X. Is the order passed by the learned Court in persuance to the said complaint whereby P.W. Farooq was eventually bound down in the security proceedings. Exh.D.Y. Is the attested copy of the judgment passed by the Assistant Commissioner, D.I. Khan, dated 30-4-1983 whereby P.W. Imam Din was convicted under section 411, P.P.C. And was sentenced to pay a fine of Rs,500 and also to undergo the imprisonment till rising of the Court. I am innocent and have falsely been charged. I was injured at the hands of the deceased and his two brothers mentioned above and P.Ws. Farooq and Din Muhammad with the consultation of their other relatives have falsely concocted the present case against us so as to save their own acts from the cross case and we have been charged on account of animosity with the complainant party, wherein no independent witnesses have been brought forward and P.Ws.
Imam Din and Jamaluddin alias Malu have falsely been introduced as eye-witnesses of the occurrence in this case."
The only disinterested person produced by the prosecution is Nasrullah Khan, A.S.I. Although he is.a police officer but he was not engaged in the investigation of this case and he came into picture while he was busy in some private affairs. This witness has nowhere charged the accused for giving injuries to the deceased. He has fully corroborated the statement of Khalid Mehmood alias Babu (accused-appellant). The prosecution has not been able to establish its case through any independent quarter. It is in evidence that the occurrence took place in the busy bazar on a day when people had come to the bazar to participate in the 'Eid Miladunnabi' procession but not a single disinterested person has been produced to support the prosecution version. The prosecution has miserably failed to prove that what weapon of offence accused Babu Din or his other co- acquitted accused were carrying with which the deceased received the injuries and succumbed to the same subsequently. Muhammad Farooq who was caught red-handed by Nasrullah Khan (P.W.9) and whose presence at the spot is established has not been produced at the trial. It, therefore, goes a long way to suggest that had he come in the witness-box he would not have supported the prosecution. It is also proved from record that as against the deceased the condition of Khalid Mehmood alias Babu accused was much precarious because Nasrullah Khan (P.W.9) immediately sent accused appellant to the Civil Hospital for medical aid while the deceased went of his own in r rickshaw to the Police Station. If we take into consideration the injuries sustained by the deceased and the damage caused to him it was not possible for the deceased to have gone to the Police Station in such a state without any support. From the narration of the aforesaid facts it is clear that there are two versions brought forward one by the prosecution and the other by the defence. Whether there are advanced two opposite versions each side claiming other to be the aggressor possibility of the defence version apparently appearing to be true the accused are entitled to acquittal. Reference with advantage can be made to Muhammad v. Ghaus and 4 others reported as 1972 SCMR 264. Similarly in Ahmad Din v. Faiz Ahmad and 2 others reported as 1972 SCMR 549:- "Self-defence-- Injury received by accused also and on vital part of body--Prosecution failing to explain injury and fact found that motive lay with complainant party in making attack--Held, mere fact that deceased received three injuries while accused got only one, did not by itself show that accused exceeded right of self-defence."
' In yet another authority reported as Shams v. The State PLD 1983 Pesh. 48 it was held:- "It is well-settled that a man acting under apprehension of death of grievous hurt cannot be expected to judge too nicely the situation and modulate his defence as observed above step by step. When a right of private defence is set up the question to be determined is not whether there was an actually continuing danger but whether there was reasonable apprehension of danger. It is not necessary that the person exercising the right could wait until he himself is attacked. If death is caused in the, exerise of the right of private defence in such circumstances, it is no offence not even culpable homicide not amounting to murder and no question of the application of exception 2 to section 300 of the Pakistan Penal Code arises. The question of applicability of that exception arises only if the alleged offender exceeded the right of private defence."
It is really very unfortunate that the learned Sessions Judge has convicted the accused-appellant on the material on which he acquitted his co-accused. If a witness perjured himself on material particulars his assertion would not be given any consideration with regard to certain other aspects of the matter. Once a person is proved to be a liar on one particular point his evidence on other points also becomes debatable. It is an established fact that the accused-appellant did receive injuries in the transaction but the same are neither explained in the I F.I.R.-cum-dying declaration nor through the evidence produced at the trial. From what ever angle we may approach this matter we are but to hold that this is a case of no evidence at all.
9. In the light of the aforesaid circumstances of the case we feel that the prosecution has miserably failed to bring home guilt to the accused-appellant or for that matter the acquitted accused.
Accordingly we accept this appeal, set aside the conviction and sentence of Khalid Mehmood alias Babu and acquit him. He should be set at liberty forthwith if he is not required in any other cause.
Criminal Revision No,1 of 1984 in the light of aforesaid discussion automatically fails and is dismissed.
Appeal accepted.