M. HAYAT JUNEJO, J. --Appellants Jamal son of Khair Mohammad aged 21 years, Ghulam Nabi son of Khair Mohammad aged 18 years. Ismail son of Fateh Mohammad aged 30 years, Rasool Bux son of Fateh Mohammad aged 35 years, Khair Mohammad son of Jamal aged 45 years and Fateh Muhammad alias Fatal son of Jamal aged 60 years, have been convicted by the learned Additional Sessions Judge, Khairpur for the murder of deceased Sahibdino son of Dur Mohammad aged 35 years. All of them have been sentenced to transportation for life under section 302/149, P.
P. C. In addition appellants Jamal, Ghulam Nabi and Ismail have been sentenced to R. I. For one year for an offence under section 148, P. P. C. While the remaining three appellants have been sentenced to R. I. For six months each under section 147, P. P. C. The sentences to run concurrently.
2. The prosecution case in brief was that 15 to 20 days prior to the occurrence there was a verbal altercation between appellant Jamal and his relations and deceased Sahibdino. Oil 26-5-1964, the deceased had gone to Wadero Ali Murad P, W. 10 and was returning at about 4-00 p.m. When he was confronted by all the six appellants. Appellants Jamal, Ghulam Nabi and Ismail were armed with hatchets while the remaining three carried lathis. They all gave injures to the deceased with their respective a weapons P. Ws. Allahdino and Allahwarayo happened to pass by the scene of occurrence just at the material relevant time and happened to witness the incident by sheer chance. The informa--tion was conveyed to the police for the first time the next morning at 3-30 a.m. When P. W. 6 complainant Abdul Wahab, brother of the deceased, reported the matter to Mumtaz Mohammad Incharge, Police Outpost, Agra at 3-30 a. m. The next morning. According to the evidence this out-post is 6-7 miles away from the wardat. P. W. Mumtaz Mohammad recorded the information conveyed by the first informant on a blank paper in the following words: - "Dated 27-5-66 at 3-30 a. m. Out-post Agra.
To, The S. H. O.
Police Station, Sobodero.
Sir, Complainant Abdul Wahab son of, Dur Mohammad caste Narejo r/o village Noor Mohammad, Khuhro, Taluka Gambat' came and stated as under: - "On 26-5-66 at 3.30 p.m. My brother Sahibdino son of Dur Mohammad caste Narejo told me Jamal son of Khair Mohammad,
2. Ghulam Nabi son of Khair Mohammad,
3. Fateh Mohammad alias Chuttal son of Jamal,
4. Khair Muhammad son of Jamal,
5. Ismail son of Fateh Mohammad, 6.
Rasool Bux son of Fateh Mohammad alias Fatal by caste Narejo have given me kicks and knife blows, as a result of which the arm has been cut and has bled profusely. It appears to be in a serious condition. He is, therefore, sent to you for report. I am going to the place of occurrence."
The First Information Report Exh. 10 was incorporated in the 154, Cr. P. C. Book the mine morning at 8-30 a. m. At Sobodero Police Station situated 10 miles away from the scene of occurrence. This was done by Head Constable Sardar Mohammad P. W. 3.
3. In the meantime Mumtaz Mohammad Incharge, Police Out-post, Agra went to the wardat where he recorded the statement of injured Sahibdino and sent him to Gambat Dispensary for treatment.
At the hospital the dying declaration of deceased Sahibdino was recorded by Head Munshi and Third Class Magistrate, namely P. W. 1 Rais Hassan in the following words :- "I had about 8-9 heads of cattle. On last third night, my brother Abdul Wahab was in jungle with his cattle and I was in my village. My brother informed me there that he had made the thieves to run away. On having such information I went to Ali Murad Narejo, our respectable man for complaining him. My village is at a distance of about one `koh' (2 miles) from the village of Khanan. After complaining I was coming back from there, yesterday at about noon time. When I reached near my house I saw that Fatoo, Khairo, Ismail. Rasool Bux, Ghulam Nabi and Jamal by caste Narejo r/o village Khanan were standing there. Ismail, Jamal and Ghulam Nabi were armed with hatchets and the rest with `lathis'. Ismail inflicted a hatchet blow 'on my left arm and the rest were standing.
Thereafter they gave me blows and dragged me forcibly to the jungle. That jungle is called Razi Dero. Thereafter, I remained there for about 4 `pahars'. Rasool Bux Narejo brought water to me.
Today in the morning I have been taken from the jungle by the police. Thereafter the police gave me a letter. I have got no previous enmity. Again says that he has got previous enmity because Jamal and Ghulam Nabi had tethered my cattle about 6 months back. I had complained of this to `Wadero' Shah Mohammad Khuhro."
In the course of investigation P. W. Mumtaz Mohammad found blood at 14 places. There was a trail of blood where the deceased was attacked first right up to the second wardat where he was subsequently found.
On 31-5-1966 all the 6 appellants were arrested vide mashir--nama Exh.
31. Some clothes which appeared to be blood-stained were recovered from their person, but we do not propose to deal with them in detail as none of these was found by the Chemical Analyser to be stained with human blood. Appellant Ismail led the police party and the mashirs to his house and from a cornbin lying therein he produced a hatchet, which was washed but there were still some blood-stains at its handle. It was secured in presence of Mashir Shah Mohammad P. W. 9 vide memo of recovery Exh.
30. The report of the Chemical Analyser Exh. 34 shows that this hatchet was stained with human blood. After the usual investigations were concluded the appellants werechallaned.
4. The deceased was examined by Dr. Riaz Ahmad, Medical Officer, Gambat on 27-5-1966 at 10-30 a. m. The doctor found the following five injuries on his person: -
(1) An incised wound cutting the left forearm from the elbow-joint and attached to the upper arm posteriorly by the piece of skin.
(2) Laceration 2" x --" over the lack of right elbow-joint.
(3) Laceration 2" x --" over the back of the right shoulder--joint.
(4) Laceration 2" x --" over the back of the left shoulder. Joint.
(5) Laceration 2" x -- " over the back of right forearm in the ins lower court.
Injury No. 1 was grievous and appeared to have been caused by sharp- cutting weapon such as hatchet, while the rest of the injuries which were simple appeared to have been caused by a blunt weapon. According to the doctor the injuries were already 24 hours old, which would mean that they were caused the previous day in the morning, much before the time alleged by the prosecution. In the cross-examination the doctor stated that the arm was not a vital part of the body and if the bleeding of the deceased had been stopped in time he could have survived.
Explaining this further the doctor stated that if the amputation of the arm had been done immediately the deceased could have survived.
5. The defence of the appellants was one of denial and false implication on account -of "party politics". The appellants stated that they were men of one Faiz Muhammad while the complainant party belonging to the rival faction of Shah Muhammad Khuro and they had been implicated falsely on account of this dispute. All the appellants are closely related inter se and are members of the same family. None of their examined any witness in defence.
6. The prosecution case rests mainly on the ocular evidence of Allahdino P. W. 7 and Allahwarayo P.
W. 8 corroborated by Ali Murad P. W.
10. As has been mentioned in the First Information Report itself both these eye-witnesses are no doubt chance witnesses. Their version is that on the day of the occurrence, just at the relevant time--- P. W. Allah Warayo had gone to P. W. Allahdino to request him to accompany him to Wadero Abdul Majid to give him some land for cultivation, P. W. Allah Warayo stated that he reached the house of P. W. Allahdino in the forenoon. At about bipahri time they left for the house of Ali Murad when on the way when they reached near Muhammad Bux's dera they heard cries and saw deceased Sahibdino being given blows by all the six appellants.
Explaining the purpose of his visit to Abdul Majid and for that reason requesting P. W. Allahdino to accompany him, P. W. Allahwarayo stated in his cross-examination as follows :- "Allahdino is known to me for the last 2-3 years as he is our neighbour. Abdul Majid lives in Nooro village, which is 8 miles away from my village. I used to cultivate for Mohammad Ayub Khuhro and still do it. I used to live in the Keti of Muhammad Ayub Khuhro. About a year before the incident I had migrated to my present house. I had not directly spoken to Abdul Majid for the land, which I intend to cultivate for him. I took Allahdino just to go with me as my companion. We did not come to know when Abdul Majid would be next available.
I never thereafter approached Abdul Majid for land."
As observed by their Lordships of the Supreme Court in Sikandar v. The State (P L D1963 SC 17), the usual explanation given by village witnesses of "Wajtakar" type is that they went out looking for a cow to by, that they failed to meet the seller and that eventually they never bought that or any other cow. In essential respects P. Ws. Allahdino and Allahwarayo's explanation is very similar and we feel that, to quote the words of their Lordships of the Privy Council in Ismail Ahmed Peepadi v.
Mst. Momin Bibi and others (AIR 1941 P C I1), it would be rash to rely on the testimony of these two chance witnesses. Moreso, when in the dying declaration of the deceased (Exh. 7), which we have reproduced above in extenso names of these two eye---witnesses as well as that of P. W. Ali Murad are conspicuous by their absence. On the other hand, this dying declaration read as a whole gives a clear picture that this was not a witnessed crime. This circumstance gets further support from the fact that for nearly 12 hours the incident was not reported to the police. If the witnesses had seen this occurrence and reported it to the relations of the deceased the latter would not be lying unattended for four pahars (12 hours) as mentioned by him in the dying declaration, Exh.
7. Indeed, even the First Information Report at Agra Police Out-post should have been filed within a matter of two hours as this out-post is only 6 miles away from the scene of occurrence. If the incident had been witnessed at 4-00 p.m., there is no reason why the First Information Report at Agra Police out-post should have been lodged at 3-30 a. m. The next morning.
7. We also find the evidence of these two eye-witnesses to be doubtful in other respects. Each one of the witnesses had stated in his examination-in-chief and P. W. Allahwarayo made the position clear even in his cross-examination that all the appellants had given blows to the deceased. Even assuming for the sake of argument that each one of these appellants was careful enough not to cause more than one injury to the deceased there should have been at least 6 injuries on the person of the deceased. The medical evidence, however, shows that the deceased had only 5 injuries of which except a solitary injury on the arm the rest were all caused by blunt weapon. The number and nature of the injuries also completely belies the testimony of these chance witnesses, which we do not find acceptable for .The reasons given by us.
8. There remains the dying declaration of the deceased. Mr. Manzoor Hussain, the learned counsel for the State contended before us that at least against appellant Ismail this dying declara--tion should be believed as it was corroborated by the recovery of a hatchet at the instance of this appellant and also by his own admission in his statement recorded under section 342, Cr. P. C.
Which was to the following effect :- "I was grazing goats and Sahibdino was stealing my goats and I challenged him and followed him.
He threatened to kill me if I followed. He had hatchet. He aimed it at me and saving myself I gave him hatchet blow in return."
This statement is contradictory to the dying declaration and cannot corroborate it because the two statements are absolutely conflicting. If, however, the contention is that this should be taken as an admission to corroborate the dying declaration we do not agree with the learned counsel for the simple reason that we find it difficult to place any reliance on the dying declaration as well. The deceased himself had stated that all the six appellants gave him blows and this fact is belied by the medical evidence. A dying declaration can under no circumstance have the same value as evidence given on oath which is further tested by cross---examination. Often times a dying person utilizes this as his last chance to implicate as many enemies and suspects as possible. Moreover, if the version of the appellant Ismail as mentioned by him and reproduced above was correct the deceased could not be expected to say so in his dying declaration. On the state of evidence on record there is the word of the deceased as against the word of appellant Ismail. Neither of them has been given on oath but as we have already said we find it difficult to place much reliance on the dying declaration and for the same reasons we find it hard to completely reject the statement of this appellant as false. It is well settled that if a statement of an accused person is the only evidence on record, it has to be accepted or rejected as a whole. The evidence of the recovery of a blood-stained hatchet at the instance of the appellant could be consistent with his plea of the exercise of the right of private defence. It is, therefore, difficult to say that the defence of appellant Ismail is not reasonably possible in the circumstances of this case, and on the authority in Safdar Ali's case this appellant is also entitled at least to the benefit of reasonable doubt as we do not place any reliance on the prosecution evidence. This conclusion also receives support from the admission of Ali Murad, P. W. 1.0 to the effect that when he and other witnesses visited the scene of occurrence they found a hatchet lying near the deceased. This fact appears to have been suppressed by the prosecution, but it is obvious that this hatchet belonged to the deceased thereby further support--ing the version of appellant Ismail. .
9. For the reasons given above we would allow all the six appeals, set aside the convictions and sentences of the appellants and direct that they should be set at liberty forthwith unless required in some other case.