ABDUL HAYEE KURESHI, J.---The appellant Shahoo alias Shah Murad Shar was tried along with his brother Khairo Shar on a charge under section 302/34, P. P. C. By the Sessions Judge,. Khairpur Mirs.
By a judgment dated 24-9-1971 the appellant was convicted under section 302, P. P. C. And sentenced to death whereas the co-accused Khairo was acquitted. The appellant has filed an appeal through Mr. Mohammad Hayat Junejo and the Sessions Judge has also referred the case to this Court for confirmation of the sentence of death. Both the appeal and the death reference are being disposed of by this judgment.
2. Briefly stated the facts are that appellant along with his brother Khairo had gone to the Makan of Bagh Fakir situated in village. Amb Fakir in Taluka Mirwah, District Khairpur on 3-8-1969. Deceased Tilloo was also there. I may point out that the said Makan was being used as a gambling house. It is then said that at about 9 p.m. The appellant and his brother Khairo left the Makan along with deceased Tilloo. After two or three minutes a gunshot report was heard which attracted Bagh, the keeper of the gambling house; Ibrahim, a relative of the deceased and several others. When Bagh reached the place from where the gun report had been heard he found deceased Tilloo lying on the ground having been injured by a pistol shot. Ibrahim also saw him in the same condition. Both these witnesses I e., Bagh and Ibrahim then state that they found Baghar, the brother of deceased Tilloo at the place where Tilloo was lying injured. The deceased as well as Baghar informed these witnesses namely Bagh and Ibrahim that while Rhairo was Walking along with deceased, Shahoo was following and Shahoo then fired a shot injuring Tilloo. Tilloo also gave the same information to these witnesses. Thereafter Jaffar Khan Jalaiani, a Zamindar of the locality, was called through Ibrahim and he was also informed about the happening. A Cot was then brought and Tilloo was carried on the Cot to the pucca road which is stated to be at a distance of two or three furlongs from the wardat. On that pucca road they found Murid Ali Shah coming in a jeep and he was asked to stop. Tilloo, who was in his senses, was then taken to Mirwah Police Station where H. C.
Mohammad Rafiq recorded the F. I. R. Lodged by Tilloo. This report which is Exh. 28 has on account of the death of Tilloo been treated as his dying declaration.
3. H. C. Mohammad Rafiq prepared a mashirnama of the injuries of deceased Tilloo and secured the clothes that he had can his person and thereafter made over investigation to H. C. Azmat Hussain Shah. This Police officer sent injured Tilloo to Medical Officer, Setharja for treatment and certificate. Dr. Mushtaq Ahmed, Medical Officer, Setharja, examined the deceased Tilloo and found a lacerated wound on his chest. After examining deceased he referred him for treatment to, the District Headquarters Hospital at Khairpur where he was again examined by Dr. Umed Ali. Tilloo died at 9-40 a.m. On 4-9-1969 and Dr. Umed Ali performed post-mortem examination of the dead body.
4. H. C. Azmat Hussain Shah visited the scene of occurrence and prepared a mashirnama of the .Same. He also recorded the statement of witnesses. Farzand Ali, Police Inspector then took over investigation on 4-8-1969. He recorded the statements of 14 persons but none of them has been examined in Court and the record indeed does not disclose as to what statements these 14 witnesses had given. The Police Inspector arrested the appellant on 8-8-1969 and while in custody the appellant led the Police Officer and Mashirs Mohammad Azim and Rahim Bux to his Otaq and from a heap of dung he produced an unlicensed pistol. However, no empty was recovered either at the wardat or from the possession of the appellant. The same police officer also arrested co- accused Khairo and sent the blood-stained earth to the chemical analyser. A report (Exh. 29) has been produced on record showing that the blood stains found at the wardat were of human origin.
After usual investigations the appellant along with co-accused Khairo was sent-up to stand his trial which has resulted in the conviction of the appellant as stated above.
5. At the trial the prosecution examined Baghar (P. W. 3), the brother of the deceased as the only eye-witness. The prosecution also examined Bagh (P. W. 4), the keeper of the gambling house; Ibrahim (P. W. 5), a relative of the deceased; Jaffar Khan Jalalani (P. W. 6j, the nekmard, who had been called at the scene of occurrence immediately after the occurrence; to give evidence in regard to dying declaration and other circumstances of the case. The prosecution also examined Murid Ali Shah (P. W. 7), who had taken deceased Tilloo and the witnesses to the Police Station in his jeep. The three police officers named above were also examined. Dr. Mushtaq and Dr. Umed Ali, who had examined the injuries of deceased Tilloo bad been examined in the Court of the committing Magistrate and their evidence was brought on record under section 509, Cr. P. C: The remaining witnesses are the mashirs, Tapedar and Assistant Sub-Inspector Mohammad Ilyas who received information from the medical officer with regard to death of Tilloo.
6. The appellant did not examine any witness in his defence but in his statement he had denied the entire prosecution case. He however alleged enmity with the prosecution witnesses. Co-accused Khairo bad also denied the entire prosecution case and had alleged that he had been implicated along with his brother owing to enmity.
7. The only eye-witness in this case is P. W. Baghar who is the brother of the deceased. This witness had stated that at about 8 p.m. He had come to fill a jar of water from the well of Bagh Fakir. He states that when he had filled the jar he found deceased tilloo and the two accused including the appellant coming from the Makan of Bagh fakir and going towards their houses, and he therefore went behind them through the same path. He further stated that when he had walked about 40 paces he saw accused Kbairo and deceased Tilloo walking ahead and they were being followed by the present appellant who after challenging deceased Tilloo fired at him with a pistol. After Tilloo fell down he raised cries, but the appellant and the co-accused ran away. However, according to this witness; Bagh, Achar, Ibrahim and some others came up and thereafter Jaffer Khan Jalalani was called and deceased was taken to the police station in a jeep of Murid Ali Shah.
8 With regard to the evidence of this witness J roust initially say that not only he is the brother of the deceased, but there is strong background of enmity between him and the appellant. He has stated that he had been sent up to face an inquiry under section 110, Cr. P. C. And he was ordered to furnish security. In this case Bux Ali who is a cousin of the appellant had appeared as a witness against him. He has further stated that his brother Dhano bad been murdered and he was a complainant in that case whereas one Juman, either a caste-fellow or an uncle of the appellant,, was accused m that case and was acquitted. This witness has further stated that a case had been pending between the appellant and co-accused on the one hand and this witness on the other hand in the Court of the Additional District Magistrate. He has also admitted in the Court of the committing Magistrate (although denied by him in the Court of Session) that while he belonged to the party of Jaffar Khan, the appellant and co-accused belong to the party of Allah Dad Punjabi and that these two parties bad been against each other.
9. In fact even the prosecution case is that the appellant and co-accused had suspected a nephew of the deceased to have stolen a. Necklace of the daughter of one Lal Bux, a close relative of the appellant and there was also a suspicion that the same nephew of the deceased had stolen a goat of the complainant party. With this background of enmity, it is indeed necessary to deeply scrutinize the evidence of this solitary eye-witness.
10. This witness Baghar has stated in his evidence that he lived in the village of Ghulam Shabbir.
Although it is not clear on the record to how far is Ghulam Shabbir's village from the scene of occurrence, but it must be stated that this village being a different village must be at some distance. The circumstance gains significance because the witness has admitted that there is a well in the house of Ghulam Shabbir and not that reason there was hardly any necessity for this witness to go to the well of Bagh Fakir to fetch water. Moreover, it appears in the evidence of the Tapedar Ghulam Mohammad (P. W. 1) that this well from where P. W. Baghar had filled up a jar is also at a distance of 196 feet from the place where Tilloo had been fired. Moreover, no reason whatsoever has been given by P. W. Baghar for following the deceased and the appellant. This witness has also admitted that no person met him or saw him he was filling the ; jar of water at the well, nor has any witness stated that Baghar a had a jar of water at that time. What is more is, that P. W. Ibrahim who is a relative of the deceased had not stated in his police statement that Baghar had given him the names of the accused persons or disclosed his having seen the incident. This omission has been brought on record through the Investigating Officer. Similarly Jaffar Khan had also not stated in his evidence in the Committal Court whether Baghar had told him about this incident.
11. Moreover, the incident is said to have taken place at 9 p.m. And at that time there would almost be total absence of light. In fact the witnesses have admitted that there was no moon light but Baghar in his evidence tried to show that the incident had taken place at 8 p.m. So as to make his evidence believable. The F. I. R. States that the incident took place at 9 p.m. And even Baghar had stated in his deposition in the Committal Court that the incident had taken place at 9 p.m: That being so it is hardly probable that he could have identified any accused, even if his presence is assumed.
12. In that context it is also necessary to consider the question of delay in the lodging of the report.
The report was lodged at 2 a.m. Viz. After five hours. It is admitted case that the injured had to be carried on a cot only up to the pucca road which is said to be at a distance of two furlongs from the wardat and thereafter the injured was taken in the jeep of Murid Ali Shah to the police station and the police station is said to be three or four miles from the scene. Murid Ali Shah has again stated in his evidence that it was 11 p. In. Or midnight when he met the party of the injured, This would show that the incident must have taken place much later than 8 or 9 p.m. As stated by the witnesses because it would not take 3 or 4 hours for the witnesses to carry the injured to the pucca road which is at a distance of 2 or 3 furlongs only. It also cannot be overlooked that Tilloo was seriously injured and, therefore, the paramount anxiety of the witnesses would be to get him medical aid. Under these circumstances it would appear that the incident had not taken place at 8 or 9 p.m. As is being stated by the witnesses.
13. I am also not impressed by the prosecution story as disclosed by the witnesses. Admittedly there was deep seated enmity between the deceased on one hand and appellant and his acquitted brother on the other. That being so it is very improbable that the deceased would accompany the appellant and the co-accused. Witness Baghar had also not pointed out the place from where the appellant had fired at the deceased when he accompanied Tapedar Ghulam Mohammad to the scene of occurrence for preparation of the sketch. In fact even in his evidence he has not stated the distance between the deceased and the appellant. All that he has stated is that the appellant was following the deceased without specifying the distance.
14. For these reasons I have entertained doubts with regard to the truth of the evidence of prosecution witness Baghar.
15. The next piece of evidence on which the prosecution relies is the dying declaration. In this case we have both written and oral dying declarations. The written dying declaration is the F. I. R. That was lodged by deceased Tilloo and recorded by H. C. Mohammad Rafiq. The oral dying declaration has been deposed to by P. Ws. Bagh, Ibrahim and Jaffar Khan.
16. No doubt the dying declaration does mention the appellant as the person who caused injuries to deceased Tilloo. A dying declaration being the word of a dying man has been considered to be substantive evidence admissible under section 32, Evidence Act. However, the question of credibility and truth of a dying declaration is a different matter. In this case admittedly there was long-standing enmity and rancour between the deceased and the appellant. There had been previous cases and the evidence of Ibrahim also discloses that the deceased and the appellant did not talk to each other before this incident. The question that then arises is that under such circumstances can it be expected that the deceased forgot the past rancours and became so imbued or bestowed with the instinct of truth and honesty that whatever he states should be taken as true, In fact dying declaration under such circumstances poses problems as to its credibility.
The evidence of P. W. Ibrahim discloses that both he and Jaffar Khan were present at the police station near the deceased. Moreover, admittedly Baghar was also present at the police station.
Under these circumstances here is a probability of the dying declaration being prompted by these witnesses. In fact whenever a dying declaration is recorded in the presence of relatives of deceased who also bear enmity to accused the possibility of the relatives of the deceased putting words in the mouth of the dying man cannot be overlooked. This is a case where the nearest relatives of the deceased who were equally interested against the appellant were with him all along and were admittedly present at the time when the dying declaration viz. The F. I. R. Was being recorded. Since I have disbelieved Baghar as to his presence at the scene or having witnessed the incident, I cannot overlook a possibility of the dying declaration having been prompted by this witness.
17. Considering the text of dying declaration I find that it is a fairly detailed document. The medical evidence discloses that the deceased had a tear admeasuring 2" x 2" on the right lobe of the liver and there were two perforations in the upper part of the small intestine. Moreover, when deceased was brought to Dr. Umed Ali he was in semi-conscious condition. Looking to the injury I think there must have been profuse bleeding. Under these circumstances, there is a possibility that the deceased may not have had the capacity of dictating this dying declaration which as I have stated is a fairly long and detailed document. This dying declaration even states the type of the game that was being played with cards in the Makan of Bagh Fakir. It also states the names of the witnesses who had arrived at the scene and also recites the manner in which the witnesses reached inasmuch as it states that Jaffar Khan had to be called. There is however, another significant feature of this dying declaration which cannot be overlooked. The document states that Bhaloo Murad and Ghulamoo were present in the Makan of Bagh Fakir, but none of them has been examined by the prosecution. The dying declaration also exhibits an anxiety on the part of the deceased to show the presence of Baghar at the place where the deceased had been shot at. It is stated in the dying declaration that when the deceased reached the well where Baghar was filling the water jar, the latter met them. Baghar in his evidence has stated that he was at a distance of 40 paces from the well when he saw the deceased and the appellant going towards south to the houses. In fact Baghar had even disclosed to the Tapedar that he was 40 feet away from the place where the deceased had received the injuries. This would show a patent anxiety on the part of the deceased to show the presence of Baghar and to make the latter's evidence as an eye-witness credible. Such a statement is also contradicted by what Ibrahim had stated in the Police statement. Although Ibrahim in his evidence in Court had stated that Baghar had told him that he had seen the incident, he was confronted with his Police statement wherein he had not so stated.
Looking therefore to all these circumstances in this case, I cannot rely on this dying declaration as a document of sanctity. There is still another aspect of the case which cannot be overlooked.
Admittedly the deceased died on the next morning at about 10 a.m. In that case police could have obtained the services of a Magistrate for recording dying declaration but no attempt was even made to get the dying declaration recorded by a Magistrate. Even the medical officers could have been asked by the Police to hear the statement of the deceased but even this was not done. For these reasons I cannot rely on the dying declaration.
18. The other piece of evidence is -oral dying declaration made by the deceased in presence of Bagh, Ibrahim and Jaffar Khan. This declaration is also similar in context as the one that is contained in the: F. I. R. Jaffar Khan is said to be a partisan witness. There are two parties in the case. Ibrahim as already stated is related to the deceased. Bagh also does not appear to be a truthful witness because he admits that he belongs to the party of Jalal Khan. He .Has also stated that Baghar was present and with regard to his presence I have entertained serious doubts. I am not inclined to rely on the evidence of these witnesses in regard to oral dying declaration which in the circumstances of this case is not corroborated.
19. The prosecution bas also examined Murid Ali Shah, the person who had taken the deceased while he was still alive to the police station. In fact Murid Ali Shah appears to be the only independent person, and he has stated that on inquiry from the deceased he was told "that one Khairo and the other person whose name I do not remember now" had fired at him. This would show that Murid Ali Shah has not supported the prosecution in regard to identity of appellant Shahoo. While Murid Ali Shah seems to have remembered the name of acquitted accused Khairo, there appears to be no satisfactory reason why he should have forgotten the name of the actual assailant tf he had been given his name. Murid Ali Shah has further stated in cross-examination that deceased Tilloo had not told him that any other person had witnessed the incident. This is a further fact which goes to discredit the evidence of P. W. Baghar.
20. The only other evidence is with regard to the recovery of a pistol. No doubt this pistol is not a licensed weapon, but there is nothing on the record to indicate that the pistol had been used for the purpose of commission of this crime. The pistol was recovered after five days and no empty had been recovered. This recovery, therefore, is hardly of any significance.
21. Mr. Usman Ghani Rashid, Assistant Advocate-General, had also candidly conceded before us thatin case the evidence of Baghar was not relied on, the remaining evidence was neither sufficient nor reliable to sustain the conviction. We also agree with him.
22. For all these reasons I allow this appeal and acquit the appellant. The reference of confirmation of death sentence imposed on the appellant is not accepted.
DORAB PATEL, J.----I agree.