1. Abdul Kadir Shaikh, J.--Appellant Mahfooz Ali son of Sved Mahmood Ali, aged 23 years, was tried along with co- accused, Dost Mohammad and Muhammad Ilyas, for the murder of Nazeer Ahmad, driver of Bus No. KAU 9422, when he reached Old Exhibition Bus-stop, Karachi, at 5-30 p.m. on 7th of January 1969. Whereas appellant was found guilty and sentenced to death, under section 302, P. P.
2. C., the co-accused were given the benefit of the doubt and were acquitted by the Additional Sessions Judge, Karachi. The case has come up before us for the confirmation of the death sentence, and on an appeal filed by the convict.
3. P. W. Muhammad Nawaz, Traffic Constable No. 5845, was on duty at the Bus-Stop at the relevant time, and he witnessed the occurrence. This is how he described it at the trial: "At about 5-30 p.m. one Bus KAU 9422 came from Boulton Market side and was for Guru Mandir side. It was waiting at the Bus-Stop of Old Exhibition. Passengers were getting out and getting to the bus. The bus was to move while I was on duty at a distance of about 20 paces from the bus. I was busy in controlling the traffic and pedestrians. A jeep passed from there and stood in front of the bus, I had seen 3 or 4 persons sitting in that jeep. They had dandas with them. They suddenly got down from the jeep and entered in the bus. They assaulted the driver of the bus. There were many persons at that place. I also went there. I saw the driver being dragged out of the bus. Two parties were exchanging blows with each other. As soon as I came at the spot the assailants left the driver injured on the ground and went away in the jeep in which they had come. The number of the jeep was noted down by me. It was KAG 761. The driver was lying injured but conscious. I saw some dandas lying at the place. I collected and packed up the dandas and removed the injured in a rickshaw to Civil Hospital, Karachi. I had gone with the injured. I handed over the injured to the doctor on duty, who had taken down my name and number. I passed on the dandas at Soldier Bazar Police Station. Police had not prepared mashirnama of securing the dandas from me."
4. From the Civil Hospital, Dr. Irfan Hussain Zaidi, C.M. O. sent a telephone message, which was recorded by Nazir Hussain A. S. I., Duty Officer of the Soldier Bazar Police Station, at Entry No. 53 of the Station Diary, at 6-40 p.m. The message, Exh. 35, reads: "At this time Dr. Irfan Hussain, CMO, Civil Hospital, Karachi, got noted down through phone that one person named Nazir Ahmad son of Muhammad Zaman No. 25 .......
5. (illegible and paper torn) resident of Bungalow No. 394, Lasbella House, (Lawrence Road), Karachi from Old Numaish bus stop is brought to Civil Hospital in injured condition. The case be sent to police officer for action. Narration came on phone got noted down. Copy of report sent for immediate report to S. I. P. Hafiz Abdul Aziz through Constable Muhammad Yousuf, No. 2340 who is busy in accident in connection with report No. 50."
6. The S. I. P. Hafiz Aziz Ahmad received copy of this message at about 7-00 p.m. at the Khoja Jamait Khan where be was busy conducting investigation in a different crime, reported under F. I. R. No. 50/69. He directly went to the Civil Hospital where he was informed that the injured was lying unconscious on bed No. 10, Surgical Ward No. 11, and was not in a condition to make a statement. The S. I. P. then went to the place of occurrence, but by this time he found no person on the spot who could give him the details of the occurrence. Even the bus which the deceased was driving was not there. He, therefore, returned to the police station where Muhammad Nawaz F. C. met him and gave him 3 dandas which had been secured from the vardat. He secured articles under Mashirnama Exh. 13 in the presence of mashirs Baboo Khan and Shubrati.
7. On the next morning, the S. I. P. went in search of Jeep No. KAG 761. It transpired that the vehicle was a Station Wagon belonging to the Shipyard Engineering Works, Karachi. The inquiries from the Manager of the company and the Driver revealed that the Wagon at the time of occurrence was on duty with Mr. Shakil Ahmad, Deputy Manager-ctww-Labour Welfare Officer of the Company.
8. Afterwards, the S. I. P. went to the Civil Hospital, Karachi, to inquire about the condition of the injured.
9. The doctor told him that the patient was in a position to make a statement. The S. I. P. made inquiries from him but the patient replied that his condition was not good. According to the S. I. P. the statement of the injured could not be recorded and he therefore returned to the police station.
10. During the course of investigation the S. I. P. went to Lasbella House where the relations of the deceased were said to reside. One Mir Afzal met him from whom he came to know the name of Mohammad Zaman, the father of the injured. He recorded his statement which was produced at the trial as Exh.
25. It reads: "I reside at the above given address and run a grocery shop. My son, Nazir Ahmad has been working as a driver on bus of G. S. Transport for the last 1| years. He went to his duty on 7-1-69 and was driving bus, route No. 1, the number whereof I do not remember. The same night, I came to know that a quarrel between him and the people of Javed Bus had taken place at Numaish, and Nazir, having been injured, was admitted to the Civil Hospital. When I received this information on the night of 7-1-69, I went to the Civil Hospital to see him, and found my son Nazir Ahmad admitted in the ward and he was unconscious. Seeing, I returned back and then went to the Hospital the next day to see Nazir and remained there. At that time, his condition was good, but he was confused, and was not speaking. I remained there with him in the Hospital, and then at night when the condition of my son Nazir got a bit better, he told me that the people of Javed Transport, whose names are Ali Bahadur, Khan Bahadur, Mahfooz Mistri and Qadir driver, who are owner and employees of Javed Transport, had beaten him with stick and knife. After saying this, my son again became unconscious and succumbed to the knife injury, which had hit him on the left rib, in the morning in the Hospital in my presence. He could not speak to me anything more than that."
11. The injured Nazir Ahmad succumbed to the injuries and expired on the morning of 9th January 1969. On receipt of the news, the S. I. P. went to the Civil Hospital and prepared the inquest report of the deceased. The S. H. O. Mahmood Ali Shah was informed at 1-OJ p.m. and he also came to the Civil Hospital. The further steps in the investigation were taken by him as the crime was converted into one under section 302, P. P. C.
12. On 9th January 1969 the S. H. O. arrested the appellant and two other persons, Ali Bahadur and Khan Bahadur, as the father of the deceased, Muhammad Zaman, had disclosed their names in his statement Exh.
25. It may be said that on 3rd February 1969 the S. H. O. submitted a report under section 169, Cr. P. C. to Additional City Magistrate, Court No. 10, Karachi for the release of Ali Bahadur and Khan Bahadur of the charges levelled against them. The final challan was submitted by him on 16th March 1969 under which the co-accused with the appellant were Dost Muhammad and Muhammad Ilyas, who were arrested on 13th January 1969 and who were ultimately acquitted at the trial.
13. Muhammad Zaman, the father of the deceased, was not satisfied with the police investigation and he made several applications to the higher authorities including the Martial Law Authorities. One of his complaints addressed to the Martial Law Administrator, B-Zone, Karachi, dated the lst April 1969 was produced at the trial as Exh.
26. In this complaint he gave the names of the murderers of his son as Bahadur Ali, Dost Muhammad and Mahfooz Ali appellants, it is interesting that he did not mention Ghulam Qadir, named by him in complaint Exh. 25, who in fact appeared as prosecution witness No. I6 and claimed to be an eye-witness of the occurrence.
14. At the trial, Muhammad Nawaz, Foot Constable, who was on duty at the place of occurrence between 3-00 p.m. and 7-00 p.m. narrated the details of the occurrence which have been reproduced earlier. He went on to see that it was "months" after the occurrence that he was called in Court to identify the culprits at the identification parade and he picked out the appellant Mahfooz Ali and accused Muhammad Ilyas. In the cross-examination, he admitted that when he reached the injured, the culprits had already gone away in the Jeep. According to him he had given all the details of the incident to the police officer of the Soldier Bazar Police Station on the evening of the occurrence, and also to the Doctor, but it is the admitted case of the prosecution that his statement was not recorded until the 9th of January 1969, The next witness who claimed to have witnessed the occurrence was Abdul Sattar, P. W.
6. He stated that he was a passenger in the bus driven by the deceased, and when it stopped at the Old Exhibition Bus-Stop, suddenly one jeep stood in front of it, and three persons got down and entered the bus, from the front side where the ladies were sitting. They were armed with dandas with which they assaulted the driver of the bus, and dragged him out of the seat. The police constable came there but, it was after the culprits ran away in the jeep. He admitted that he did not even note down the number of the jeep, and it is obvious that he could not remember it. According to him the appellant Mahfooz Ali as one of the assailants, who inflicted danda blows to the driver of the Bus.
15. He further stated that the father of the deceased had taken him to the police station to get his statement recorded. According to the S. H. O. this was on 24th January 1969.
16. The 3rd eye-witness, according to the prosecution was Baboo Ali P. W. 7, but at the trial he did not implicate any of the accused persons and was declared as a hostile witness. Khuda Bux P. W. 9 also claimed to be passenger of the bus driven by the deceased. According to him there were 4 or 5 persons in the Jeep that stood in front of the Bus as soon as it stopped at the Old Exhibition Bus- Stop. He was definite that accused Dost Muhammad and appellant Mahfooz Ali were among the persons in the Jeep but he could not say whether*the accused Muhammad Ilyas was one of them.
17. Narrating details of the incident he stated that the accused Dost Muhammad had an iron rod with him while the appellant was armed with a knife, and it was the appellant who entered the Bus, from its front door, and dragged out the driver and assaulted him, and the others gave him Wanda blows thereafter. According to him, the incident was witnessed by all the passengers of the Bus as well as the Police Constable who immediately reached the spot. He stated that after 3 days of incident, the father of the driver of the Bus came and took him to the police station where his statement was recorded. According to him Akhtar Nawaz, his younger brother, used to work at the Manzoor Autos near Lasbella House, and it might be through him that the father of the deceased came to know about his name. P. W. Khuda Bux denied the suggestion that the deceased was related to him and also disclaimed having known any woman by the name of Saadat Bibi. In the cross-examination he however, made the variations to the following effect: "It is not a fact that deceased Nazeer Ahmad was my relation. I do not know any woman by name Saadat Bibi. I am married. My mother-in-law is Mst. Maqbool Khanam. There is a sister of my mother-in-law, but I do not know her name. It is not a fact that her name is Saadat Bibi. I did not state in lower Court 'My mother-in-law has a sister by name Saadat Bibi, confronted so recorded portion marked Exh.
30. The sister of mother-in-law is married. She has children also. It is not a fact that the sister of my mother-in-law is the wife of Muhammad Zaman P. W. and mother of the deceased Nazeer Ahmad."
18. [VOL. V At the trial P. W. Khuda Bux denied having gone for condolence to the house of Muhammad Zaman, the father of the deceased. He was, therefore, confronted with an earlier statement made by him before the committal Court to the effect: "On the day when Nazir had expired I had gone to the house of his father Muhammad Zaman for offering condolence." When questioned whether he had made that statement, his reply was in the negative. According to him, his statement was recorded by the police on the 3rd day of the incident when he had gone there with the father of the deceased, but the S. H. O. stated that this happened on the 10th January 1969.
19. The last prosecution witness who claimed to be an eyewitness of the incident was Ghulam Qadir P.
20. W. I6. He stated that he was driving Bus No. KET 9993, and when he reached the Old Exhibition Bus- Stop, he saw the Bus of the deceased with a crowd of people there, and further noticed that the appellant was giving knife blows to the deceased, who was held by accused Dost Muhammad.
21. According to him, Muhammad Ilyas accused was sitting in the Jeep. He, however, took his Bus to Lasbella and after handing it over to Malik Aman, driver, went to his uncle Muhammad Zaman, the father of the deceased, to inform him that his son was assaulted. According to him Muhammad Zaman was not in his house as he had received the news already and he therefore, went to the Civil Hospital, and both of them returned together at 8-30 p.m. He admitted that they made no report to the police, and that the deceased did not tell him anything before he died. He was to marry the sister of deceased and in this connection he stated, "It is not a fact that I did not get the girl as her parents had refused to give her to me, in marriage. In fact I had refused to marry her.
22. Now 1 have married from strangers. Nazir's sister had been married to another person out of our sub-caste. It is a fact that I was not on visiting terms with the deceased after I had refused to marry his sister. It is a fact that the father of the deceased had complained against me saying that I had murdered Nazir."
23. It may be said that P. W. Ghulam Kadir was examined by the police for the first time on 11th January 1969, and persuant to the complaint (Exh. 25) made by the father of the deceased, he was arrested as an accused person. He was not even shown as a witness of the prosecution in the charge-sheet submitted in the case, and was not examined during the Committal Enquiry.
24. The appraisal of the learned Additional Sessions Judge with regard to the evidence of the eye- witnesses is as follows:-- "The evidence of the eye-witness is not reliable. These witnesses in some way or the other are connected with the deceased. They identified the assailants, they must have brought this fact to the notice of police without delay. The names of Babu Ali, Abdul Aziz were disclosed from the statement of Muhammad Hanif, the bus conductor. The witness Muhammad Hanif has not been examined. Babu Ali does not support the case against any accused. Abdul Sattar, Khuda Bux and (jhulam Qadir are the interested fitnesses. They h$d the opportunity of seeing the accused before the identification parade was held. This possibility cannot be excluded from the statements of these witnesses. Thus I feel that the only evidence against accused Mahfooz Ali is of dying declaration. The circumstances of the case show that this evidence alone * is enough for conviction of this accused under section 302, P. P. C. He was one of the assailants. The case against him has been proved through the dying declaration."
25. The guilt of the appellant was, therefore, based solely on the oral dying declaration allegedly made by the deceased to his father Muhammad Zaman.
26. So far as the ocular testimony is concerned, we wholeheartedly agree with the findings of the learned Additional Sessions Judge that the evidence of the eye-witnesses is not reliable. As would be noticed, none of the prosecution witnesses, who claimed to have witnessed the occurrence, went forward even to make a report of the incident to the police station. In i fact, for the first time any of them was examined by the police was on the 9th January 1969, i. e., two days after the incident.
27. It is highly regrettable that whereas the incident, in which Nazeer Ahmed, was done to death, occurred in broad-day-light, near Old Exhibition Bus-Stop, which is one of the busiest spots of Karachi, in the presence of all the passengers whom the deceased was driving in his bus, including the bus conductor, yet none of them tried to capture the culprits, or note down the number of the vehicle in which they escaped or even made a report to the police. Admittedly, Traffic Constable Muhammad Nawaz took the injured to the Civil Hospital, and according to him he gave the details of the incident to the police officer of the Soldier Bazar Police Station but no note was recorded even in the police diary as to what had happened, not to speak of recording1 a First Information Report. H The circumstances in which the statement of the father of the deceased, Exh. 25, which was treated as th complaint, is also shrouded in mystery. According to the earlier version of Hafiz Ahmad Khan S. I. P, this statement was recorded at the Civil Hospital, and he then returned to the police station, where he made such an entry in the Station Diary. He then remembered that he had recorded the statement, Exh. 25, at Lasbella House on the 9th January 1969, at 6 p.m. When questioned as to why after recording this statement, he had not registered the case he said: "The search of the witnesses was necessary for me, but not the registration of the case." Another question was put to him and he gave the reply "I am confused, hence I cannot make a reply. This is because of the kidnapping of my son."
28. At that stage the learned Assistant Police Prosecutor came to the rescue of the S. I. P. and requested for adjournment on the ground that the witness was confused. The case came up for hearing after 13 days. On that day the S'. I. P. stated that he was in a position to make a statement.
29. This is how he explained: "Now I correct myself and state that when I had gone to Lasbella House side I did not contact the father of the deceased.
30. From that place I went to my house where! was informed that Nazeer had expired in the hospital...................... I went to the hospital when it was about 10 a.m, I saw the dead body of Nazeer lying in the verandah of the hospital. Muhammad Zaman was there. I recorded his statement Exh. 25................. ' .
31. It is not a fact that I had recorded the statement of Muhammad Zaman at his house on 9th January 1969, when I had gone there. I had stated in the lower Court that I had gone to the house of Muhammad Zaman on 9th January 1969, at 6*00 p.m. and recorded his statement in my presence.
32. 1 did not incorporate the statement of Muhammad Zaman word by word in the report Exh.
42. I had recorded the F. I. R. Exh. 42 after I had also added certain things in the report which were not stated by Muhammad Zaman."
33. As against this, Muhammad Zaman (P. W. 8) the father of the deceased, stated as follows:-- "On 8th January 1969, I was allowed to see my son in the Hospital after 3 p.m. when I met my son at this time he was ailing but was in senses. My relations, and his friend, about 29 in number were present with him at that time. I inquired from my son as to who had assaulted him. He told me: When I brought the passengers in the bus from Keamari and reached Old Exhibition, then a jeep came and stood in front of me. Bahadur Ali, Dost Muhammad, Muhammad Mahfooz (Mahfooz Ali, appellant) etc., got into the bus from ladies entrance and from the back gate. They started beating me with lathis and knives. Mahfooz had given me knife blows. Bahadur Ali was saying to others 'Kill him. Do not spare him'."
34. P. W. Muhammad Zaman completely disowned Exh. 25 to be his statement. This is what he said: "I see the statement on which there is a signature of mine. It is a forgery but not my signature.
35. The statement is read over to me in Court. I had not given the statement nor it bears my signatures.
36. This is Exh. 25.
37. I had made the application dated lst April 1969, to the Martial Law Authorities. I produce this application Exh. 26.
38. It bears my signatures................... My signature on Exh. 26 is genuine but signature on Exh. 25 is forged."
39. It would be seen that the basis of the prosecution case was the statement of P. W. Muhammad Zaman Exh.
25. According to P. W. Hafiz Abdul Aziz Ahmad Khan, S. I. P., as he finally correct himself, he recorded that statement at the Civil Hospital after the injured Nazeer Ahmad expired. P. W.
40. Muhammad Zaman however explained that on 9th January 1969, at 4-30 p.m. Abdul Khaliq informed him that his son had expired and he started making arrangements for the funeral. At that time, a constable came to him and told him that the dead body of his son would not be delivered to him unless he put his signature on a paper. That paper (Exh. 25) contains the statement of the father of the deceased in these words: "At that time (on 8th January 1969, time not mentioned) his (his son's) condition was good, but he was confused and was not speaking. I remained there with him in the hospital and then at night when the condition of my son Nazeer got a bit better, he told me that the people of Javed Transport, whose names are Ali Bahadur, Khan Bahadur, Mahfooz Mistri and Qadir driver, who are owner and employees of Javed Transport had beaten him with sticks and knife. After saying this my son again became unconscious and succumbed to the knife injury, which had hit him on the left rib, in the morning in the hospital in my presence. He could not speak to me anything more than that."
41. This was the dying declaration on which the learned Additional Sessions Judge solely founded the guilt of the appellant, after having rejected the evidence of all the prosecution witnesses as stated earlier. The finding of guilt of the appellant was put by him shortly as follows :-- "From the evidence of the above witnesses it has been established beyond doubt that the name of accused Mahfooz Ali was given by the deceased to his father before he had died. Muhammad Zaman the father of the deceased disclosed this fact before police in his statement Exh. 25."
42. But shortly Exh. 25 was precisely what its author P. W. Muhammad Zaman disclaimed as a forgery.
43. According to him his son made the dying declaration which was differently worded, made in totally different circumstances, and at a different time of the day. He stated that his real complaint was Exh. 26, addressed to the Martial Law Administrator, B Zone, Karachi, on lst April 1969. But again, in that complaint he did not even make a mention of the dying declaration. It would, therefore, be unsafe in the extreme to make the dying declaration as given by the deceased's father to be the foundation of the guilt of the appellant on the serious charge of murder. It cannot be held with any confidence as to what the deceased actually stated, because the only person who was produced by the prosecution to prove the dying declaration, changed the version from time to time, by adding, subtracting or substituting the names of the guilty ones. There is, therefore, no option but give what is legitimately due to the appellant namely, the benefit of doubt.
44. In result, this appeal must succeed, and is accordingly allowed. The conviction and sentences imposed upon the appellant are set aside, and he will be released forthwith, unless required in some other connection. .