' Appellant Ghulam Rasool alias Lala and Ghulam Muhammad, both sons of Suleman Hingorjo, were tried by learned Additional Sessions Judge, Thatta for the offence under sections 302, 324, 307, 460/34, P.P.C., who acquitted accused Ghulain Muhammad, but convicted appellant Ghulam Rasool for the offence under section 302, P.P.C. And sentenced him to suffer imprisonment for life and to pay a fine of Rs,5,000 (Rupees five thousand) or in default to suffer R.I. For five years. The appellant was also directed to pay a sum of Rs,5,000 as compensation to heirs of deceased Imamdino and Basar or in default to suffer R.I. For five years. The appellant was also convicted for the offence under section 324, P.P.C. And sentenced to suffer R.I. For six months and to pay a fine of Rs,1,000 or in default to suffer R.I. For one month. He was further directed to pay Rs,500 (Rupees five hundred) as compensation to Mst. Memi or in default to suffer R.I. For one month. The sentences were ordered to run concurrently. The appellant was also extended benefit of section 382-B, Cr.P.C.
By this appeal filed under section 410, Cr.P.C. The appellant has questioned the legality of the conviction and sentence recorded on 26-4-1987.
2. The case of the prosecution as unfolded in F.I.R. Lodged by deceased Imamdino is as follows:- "I am residing along with my relative Basar in his house situated at Ward No, 2, which is surrounded by a compound wall, having its door on the West. Today on 7-8-1984, as usual, I, Basar, Mst. Memi were sleeping in the Verandah of our house after locking the main gate. Mst. Basran was also sleeping in the same Verandah. At about 11-30 p.m. I woke up on hearing the rattling sound and saw two persons standing in the Verandah. The lantern was burning. I gave them challenge (Hakal) and raised cries of 'Thief, thief, whereupon the above-mentioned family members woke up and the thieves who were standing there started running. Out of them, I identified one person as Lala son of Suleman Hingorjo, whom I knew previously as he is our neighbor. I, however, failed to identify other person, but on seeing him again I can identify him. When Basar went near the culprits in order to capture them, accused Lala took out a knife from the fold and caused injuries to Basar on his left flank and on other parts of the body. I, Mst. Basran and Mst. Memi intervened, whereupon accused Lala caused one knife injury on my left groin and caused two knife injuries to Mst. Memi, while the unidentified person caused blunt side hatchet blow to Mst. Memi on her elbow. On our cries, the neighbors, namely, Jano son of Khamiso Waryo, (2) Muhammad Hashim son of Nathu Waryo, and others came there running who also saw the accused persons inflicting the injuries, and then the accused persons decamped. Then after taking the injured persons, I have now come here to lodge the report that accused persons Lala and another unidentified person trespassed into our house with intention to commit theft in our house and after inflicting hatchet and knife injuries to us, they have run away. I am complainant. The investigation may be done."
3. Nasrullah A.S.I. Of Police Station Thatta recorded the F.I.R. On 8-8-1984 at 12-15 a.m. He then recorded the statement of Mst. Memi, who was injured. Deceased Basar was unconscious; hence he could not be examined at that time. The Police Officer then referred all the injured persons to Civil Hospital, Thatta. He then repaired to the scene of occurrence which was shown to him by P.W.
Jan Muhammad in presence of Mashirs Habibullah and Babu. The statements of Jan Muhammad, Hashim and Mst.Basran were then recorded. The condition of deceased Basar was serious, hence his dying declaration was recorded by a Third Class Magistrate. Basar and Imamdino died in the hospital and consequently necessary amendments were made in the F.I.R. Karamat Hussain S.H.O.
Arrested both the accused persons on 15-8-1984 in presence of Mashirs Habibullah and Babu. They produced their respective weapons which were secured. The bloodstained shirt of appellant Ghulam Rasool was also secured and sealed on the spot. On 16-8-1984, both the accused were produced before Mukhtarkar and F.C.M., Thatta, who recorded judicial confession of appellant Ghulam Rasool. The blood-stained articles were sent to Chemical Examiner, Karachi, who found human blood on them. After completing the investigation the appellant and his brother co- accused Ghulam Muhammad (since acquitted) were sent up to stand trial.
4. At the trial the prosecution has examined Jan Muhammad (P.W.1), Mst. Memi (P.W.2), Mst. Basran (P.W.3), Habibullah (P.W.4), Dr. Muhammad Juman (P.W.5), Zafar Ali Shar F.C.M. (P.W.6), Ikram Hussain (P.W.7), Muhammad Usman A.S.I. (P.W.8), Muhammad Amin Tapedar (P.W.9), Nasrullah A.S.I. (P.W.10) Karamat Hussain S.H.O. (P.W.11) and Muhammad Hashim (P.W.12).
5. In his statement recorded under section 342, Cr.P.C., the appellant has disputed the case of the prosecution. His defence in his own words is as follows:- "I have enmity with Aro Wario due to dispute over plot of land. Khano, my cousin had enticed away Mst. Wassandi, mother-in-law of Abdullah, who is brother of P.W. Hashim. P.W. Jano is cousin of Abdullah and Hashim. Mst. Wassandi is related to Aro Wario. The PWs. Have deposed against me at the instance of Aro Wario and Aro has implicated me in this false case due to enmity. I am innocent. At the time of this offence I was minor and I produce school certificate as Exh.21/A. Police implicated me in this false case at the instance of Aro Wario. I did not make any confession voluntarily."
6. The appellant examined himself on oath. He also examined Ali Muhammad Headmaster in his defence (D.W.1).
7. On the assessm ent of the evidence available on record, the learned Additional Sessions Judge found co-accused Ghulam Muhammad not guilty and consequently acquitted him. Appellant Ghulam Rasool alias Lala was, however, found guilty and convicted accordingly.
8. I have heard Mr. Muhammad Saleh Memon, learned counsel for the appellant and Mr. Muhammad Akmal Wasim, learned counsel for the State.
9. Admittedly the incident took place in the house of deceased Basar at about 11-30 p.m., where deceased Imamdino, P.Ws. Mst. Memi and Mst. Basran also resided. The presence of these persons in their own house is, therefore, natural. The testimony of witnesses, who are natural witnesses of an occurrence and whom one would expect to have seen it should not be doubted only because they happen to be related to the deceased persons. Out of these two eyewitnesses Mst. Memi is an injured person and her presence at the relevant time cannot be doubted or suspected. The real question which falls for determination is regarding the identity of the assailants. According to the case of the prosecution the assailants were identified on street light and on the light of lantern burning in the house. The evidence of Mst. Memi (P.W.2) which is material on this aspect of the case shows as follows:- "The two accused had muffled faces with towels. The lantern was burning at a low point and it was darkness in the house. It is correct that after causing injuries the assailants ran outside the house. It is correct that I could not identify the assailants immediately due to muffled faces. The P.Ws. Jano, Hashim and Habib came after the accused had gone away."
10. Mst. Basran (P.W.3) is aged about 70 years. Deceased Imamdino was her brother, while deceased Basar was her son. Mst. Memi is her daughter. They all resided in the same house where the incident took place. Her evidence about the identity of the assailants also shows that they were not identified at that time. She says:- "It is correct that night of incident was not moonlit. We had slept keeping the lantern burning. It is correct that the bulb on the pole was not burning on the night of incident. It is correct that due to old age I cannot see long distance. It is correct that I cannot recognise a person in the night from 7-9 paces. It is correct that the assailants had muffled aces. ...."
11. The evidence of both these eye-witnesses including injured Mst. Memi (P.W.2), therefore, clearly shows that they were not able to identify the appellant. The evidence regarding the source of identification in a dark night is also conflicting. The evidence of Nasrullah A.S.I. (P.W.10), who had inspected the place of Wardat soon after the incident is silent about the presence of lantern and its recovery from the Wardat.
12. In view of the testimony of these two witnesses the allegation made in dying declarations (Exch.17-A) and (Exh.14-A) by deceased Imamdino and Basar respectively, about the identity of appellant also becomes doubtful.
13. It is the case of the prosecution that Imamdino, who died afterwards lodged F.I.R. (Exh.17-A), which is now dying declaration, in which the present appellant was implicated. The F.I.R. Is admissible under Article 46 of Qanun-eShandat, 1984 as the statement of a person (since dead) relating to circumstances of the transaction which resulted into his death. The evidentiary value of such F.I.R. Lodged by deceased person was considered in Ashique Mir and 4 others v. The State reported 1987 P Cr. L J 2101 and it was observed:- "In this case as already observed the first information report was lodged by Muhammad Ayaz Khan deceased, who was then in full senses. To rely upon a dying declaration the Court has to carefully scrutinize all the physical circumstances as they appear from the evidence to reach a conclusion with a degree of certainty that the account given by the deceased of the manner in which he met his death is worthy of belief and credence. Some of the main tests for determining the genuineness of a dying declaration are whether the maker had the physical capacity to make a dying declaration, whether the maker had an opportunity to recognize the assailant(s), whether there were chances of mistake on the part of the dying man in identifying and naming his assailant(s), whether it was from prompting from outside quarter, whether the witnesses who heard the deceased making the statement had heard him correctly and whether their evidence can be relied upon."
14. As observed earlier the incident took place at 11-30 p.m. In dark night with insufficient light, the implication of appellant in F.I.R. Which is now dying declaration on account of prompting from the persons, who had reason to implicate him falsely, cannot be ruled out. It may be added that appellant and his brother co-accused Ghulam Muhammad are close neighbours of deceased Imamdino. The omission to disclose the name of co-accused Ghulam Muhammad (since acquitted) in dying declaration (Exh.17-A) further lends support to this allegation that Imamdino had no opportunity to recognise his assailants who had selected those late hours purposely.
15. Jan Muhammad (P.W.1) and Muhammad Hashim (P.W.12) who are Wario by caste claim to have reached the scene of occurrence after hearing the cries raised by the deceased persons and Mst.
Memi (P.W.2), and Mst. Basran (P.W.3), when the appellant and his brother co-accused Ghulam Muhammad were still at the Wardat giving blows to Imamdino and Basar. Jan Muhammad (P.W.1) states that his house is situated at a distance of about 100 or 150 paces away from the Wardat.
Muhammad Hashim (P.W.12), however, admits in clear terms that his house is situated at a distance of about one furlong away from the house of deceased Basar. Mst. Memi (P.W.2) and Mst.
Basran (P.W.3) confirm this position. Mst. Memi admits in cross-examination that the house of Hashim is situated at a distance of about one furlong from her house and that P.W. Jan Muhammad resides near the house of flashim. The evidence of Mst. Memi (P.W.2) further indicates that the assailants had left their house before the arrival of any person. Both these witnesses had, therefore, no opportunity to reach at the Wardat at the time when the assailants were still engaged in their mission. Appellant Ghulam Rasool had enmity with Aro Wario, the Nekmard of these witnesses over a plot. Quite admittedly all these persons, who are Wario by caste, had taken injured persons to the police station. Mst. Memi (P.W.2) has further admitted that Jano, Hashim, Habibullah and Baboo were present at the police station with deceased Imamdino, when he lodged the F.I.R.
The prompting from outside quarter, therefore, cannot be ruled out.
16. Ikram Hussain (P.W.7) who was working as Assistant Mukhtarkar and T.C.M. Thatta had recorded the dying declaration of deceased Basar (Exh.14-A). He has testified that deceased Basar was in senses at the time when his statement was recorded by him. It may be noted that deceased Basar was lying unconscious when Jan Muhammad and others had reached the Wardat on hearing the cries. He was in coma when deceased Imamdino lodged the F.I.R. His statement could not be recorded by the police officer upto the last time till (Exh.14-A) was recorded in presence of Ikram Hussain (P.W.7), who, however, admits that he did not consult the Medical Officer about the condition of deceased Basar before recording his dying declaration. It is thus, clear that the Medical Officer did not vouchsafe the mental fitness of deceased Basar when his so said dying declaration was recorded.
17. The dying declaration made by deceased Basar (Exh.14-A) is almost on same lines as made by deceased Imamdino (Exh.17-A). Ikram Hussain (P.W.7) has admitted in clear terms that the relatives of deceased persons were present with him when he was making statement. Besides the patent weakness in the statement (Exh.14-A), this declaration was obviously prompted by the persons, who were responsible for involving appellant Ghulam Rasool in this case. No reliance, therefore, can be placed upon dying declaration of this nature.
18. An attempt has been made to prove the recoveries of blood-stained knife and shirt through Mashir Habibullah (P.W.4) and Karamat Hussain S.H.O. (P.W.11). It is alleged that these articles were recovered from a box lying in the house of appellant. Admittedly this is a joint house where all the family members including the father of appellant reside. In such a situation the possession of the appellant cannot be said to be exclusive. Habibullah (P.W.4) has acted as Mashir throughout the investigation. He is Wario by caste with background of enmity with the appellant. Even otherwise according to Mashir, the recoveries of the blood-stained articles were made after two days of the arrest of appellant, which position is in conflict with the statement of Karamat Hussain S.H.O.
(P.W.11).
19. Lastly there is evidence of judicial confession made by appellant Ghulam Rasool (Exh.13-A).
Zafar Ali Shar (P.W.6), who was working as Muktarkar and F.C.M. Thatta, recorded this confession after observing all the formalities of law. This confession was retracted by the appellant at the earliest opportunity which he got. The basic object of allowing time of reflection and putting questions to an accused person when he is brought before a Magistrate is to remove him from police influence. It is, therefore, necessary that the Magistrate should make the accused understand that he was before a first class Magistrate and not before a Police Officer. Zafar Ali Shar (P.W.6) admits in clear terms that he did not make a mention in the body of (Exh.13-A) that the accused was informed that he was before a 1st Class Magistrate. This omission is significant, although the Magistrate has tried to cover it by stating in Court that he had informed the appellant about this position. Even otherwise a retracted judicial confession should not be acted upon unless corroborated in material particulars. The cases of Nadir Hussain v. The Crown, reported in 1969 SCMR 442, Rasool Bux v. The State reported in 1974 P Cr. L J 325, and Amir Bux v. The State reported in 1987 P Cr. L J 1364, are relevant in this behalf. It will not be out of place to mention here that the confessional statement of appellant (Exh.13-A) is contrary to the story set up in F.I.R. (Exh.17-A).
Again one tainted piece of evidence cannot corroborate the other.
20. It appears that the learned Additional Sessions Judge took in view the moral side of the case. A Judge neither rewards virtue nor chastises vice. He only administers even-handed justice between man and man and even between the citizen and the State. He has to deal with hard facts. His judgment has, therefore, to be based on facts as presented to him and the law as he understands it. He must not be carried away by his sympathy for either party.
21. In view of what I have stated above, I fail to discover the result which apparently a critical examination of the learned Additional Sessions Judge had produced. The judgment dated 26-4- 1987, is, therefore, set aside. The appeal is accepted and the appellant is acquitted from the charge. He is in custody and be released forthwith, if not required in any other case.