' Appellant Sikandar son of Badruddin was tried by Miss Mahjabeen, III Additional Sessions Judge (East), Karachi, for committing the murder. Of Nasrullah by means of a dagger, an offence punishable under section 302, P.P.C. Who vide judgment dated 2-3-1989, found him guilty and sentenced him to imprisonment for life and to pay a fine of Rs,5,000 or in default to suffer R.I. For one year. The appellant has questioned the legality of his conviction and sentence by this appeal.
2. On 19-8-1985 at 2-30 a.m. S. Akhtar Butt S.I.P., duty officer, Police Station Soldier Bazar, received a telephonic message from Civil Hospital, Karachi about the arrival of injured Nasrullah to the hospital. He made such entry in daily diary and left for Civil Hospital, Karachi. The injured was lying unconscious, hence his statement could not be recorded. Nasrullah regained senses at 6 p.m.
When his 154, Cr.P.C. Statement was recorded which was subsequently incorporated in 154, Cr.P.C.
Book (Crime No, 212 of 1985). On the same day at 910 p.m. The appellant was arrested from his house. He was wearing blood-stained clothes which were seized and sealed on the spot in presence of Mashirs Abdul Rehman and Abdul Aziz. The Police Officer also secured blood-stained Chadar wrapped around the wound of Nasrullah. He also recorded the statements of witnesses and inspected the place of occurrence. On 22-8-1985 Nasrullah died in hospital. The offence was then converted from section 307, P.P.C. To section 302, P.P.C. The dead body of Nasrullah was handed over to his relatives without postmortem examination. On 29-8-1985, the appellant while in custody led Police Officer and Mashirs Karamat Masih and Kushan to the bed of Lyari river and pointed out the place where he had thrown the dagger. The Mashirs who are sweepers by profession then took out the dagger from dirty water which was seized under a Mashirnama. After completing the investigation the appellant was challaried.
3. The case of the prosecution as unfolded by deceased Nasrullah in his statement recorded under section 154, Cr.P.C. Is as follows:-- "I reside at the above mentioned address and have got a PAN cabin. Today at night at about 1-30 a.m. I was going to Lasbela Chowk for taking meals after closing my cabin. When I reached on Muscat Road Sikandar son of Badruddin met me who had a dispute with me over money transaction. He stopped me expressing that he would not spare me and saying so he started giving dagger blows to me. I tried to save myself but was struck on left side of abdomen and armpit of left arm. On my commotion persons from Mohalla arrived there, who rescued me. I had become unconscious and I regained my senses in hospital. My complaint is against Sikandar son of Badruddin for causing injuries by successive blows with dagger with intention to kill me."
4. The appellant pleaded not guilty to the charge and claimed a trial. The prosecution examined Abdul Aziz (P.W.1), Kushan (P.W.2), Karamat Masih (P.W.3), Muhammad (P.W.4), Barkat Ali (P.W.5), Muhammad Aslam F.C. (P.W.6), S. Akhtar Butt, S.I.P. (P.W.7), Dr. Liaquat Ali (P.W.8), and Dr. Shafi Muhammad Nizamani (P.W.9).
5. In his statement recorded under section 342, Cr.P.C. The appellant has denied the case of prosecution. He did not examine himself on oath. He also led no defence.
6. On the assessm ent of evidence the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly.
7. The case of the prosecution rests upon the following items of evidence:--
(i) Direct testimony consisting of Abdul Aziz (P.W.1).
(ii) Oral dying declaration of deceased Nasrullah made to Muhammad (P.W.4).
(iii) Dying declaration made- in 154, Cr.P.C. Statement (Exh.25).
(iv) Recovery of blood-stained clothes from the person of appellant.
(v) Recovery of dagger at the instance of appellant from Lyari river.
(vi) Motive.
8. I propose to examine the evidence of Abdul Aziz (P.W.1) first. Abdul Aziz (P.W.1) is younger brother of deceased Nasrullah. According to him he was present in his house when at about 1-30 a.m. He heard commotion and went outside the house. He saw appellant Sikandar causing dagger blows to deceased Nasrullah who fell down on the ground and thereafter the appellant decamped. The evidence of Abdul Aziz (P.W.1) further shows that the incident was witnessed by Anwar Jafar Ali and Muhammad Hakim Ali. He claims to have wrapped an Ajrak (Sindhi Chadar) around the wound and carried Nasrullah to Civil Hospital, Karachi. Admittedly Abdul Aziz (P.W.1) did not lodged F.I.R. He did not go to police station after leaving injured Nasrullah in the hospital. He also did not lodge F.I.R.
When Police Officer himself came to Civil Hospital, Karachi during night time, why?, nobody knows.
In such a situation there is always a strong temptation to conceal the truth. This appears to have been done in this case.
9. The circumstances attending to this case indicate that the incident was not premeditated and it took place all of a sudden at odd hours. Abdul Aziz (P.W.1) who was present in his house at the time of occurrence was attracted on cries and he rushed to the Wardat and claims to have witnessed the incident. His presence at the place of occurrence at the relevant times is, however doubtful for the following reasons:--
(i) The statement of deceased Nasrullah recorded under section 154, Cr.P.C. (Exh.25), makes no mention about the presence of Abdul Aziz (P.W.1) at the time of incident.
(ii) Out of two alleged eye-witnesses, Muhammad (P.W.4) rules out the presence of Abdul Aziz (P.W.1) at the time of incident, who states in clear terms that Abdul Aziz (P.W.1) had reached to the Wardat after 10 or 15 minutes of the incident.
(iii) The abnormal delay in lodging F.I.R. Which remains unexplained lends support to the defence plea that it was an unwitnessed crime.
10. No doubt deceased Nasrullah died an unnatural death, but that factor alone is not sufficient to conclude that the appellant was author of this crime and the same was witnessed by Abdul Aziz (P.W.1). A conviction is certainly not to be based on the weakness of defence. The prosecution has to stand on its own legs.
11. Muhammad (P.W.4) who according to Abdul Aziz (P.W.1) is an eyewitness of this case took a complete somersault in his statement at the trial. He disowned the evidence of Abdul Aziz (P.W.1) and gave an utterly different version, which is as follows:-- "I know complainant Abdul Aziz. I knew deceased Nasrullah also. He was the brother of Abdul Aziz. I know P.W. Anwar Ali also. About 2-1/2 years ago at 1-30 a.m. I was present in my house. I heard commotion outside my house and went outside and saw that Nasrullah was lying on the ground in injured condition. The injuries were on the left side of his hand. I came out from my house on hearing the cries of Nasrullah and he informed me that accused Sikandar had caused him injuries..."
12. The evidence regarding the 'so said dying declaration' is clearly an exaggeration. The 154, Cr.P.C.
Statement (Exh.25) on which much reliance is placed by the prosecution is silent about it. On the other hand it shows that deceased Nasrullah went unconscious after sustaining injuries and he regained senses in hospital. The only fact that Muhammad (P.W.4) had no obvious reason to depose falsely is not a sure guarantee that whatever he has testified was nothing but truth.
13. Again no question about this oral dying declaration was put to the appellant in his statement recorded under section 342, Cr.P.C., to explain this F position. No reliance, therefore, can be placed upon this circumstance.
14. I now proceed to examine the evidence of dying declaration which is in the form of 154, Cr.P.C.
Statement (Exh.25). S. Akhtar Butt, S.I.P. (P.W.7) has recorded this statement on 19-8-1985 at 6 p.m.
After 16-1/2 hours of the incident. Admittedly Nasrullah was lying unconscious during all this period.
This statement was not recorded in presence of Medical Officer Incharge although his presence could have be procured. The Police Officer further admits that relatives of Nasrullah were present with him when he reached to Civil Hospital, Karachi for recording his statement. S. Akhtar Butt, S.I.P.
(P.W.7) also states that deceased Nasrullah was fit to make statement when he recorded his statement under section 154, Cr.P.C. (Exh.25), and the Medical Officer Incharge had certified so in writing. The said certificate is, however, not produced. Dr Shafi Muhammad Nazamani (P.W.9) has also not stated so in his evidence.
15. A dying declaration which is relevant is a violent exception to almost all the fundamental rules of law of evidence. All Courts have agreed, with more or less difference of language, that the approach of death produces a state of mind in which the utterance of a dying person are to be taken as free from all ordinary motives to mis-state. But cases are not uncommon of false declaration being made by a dying man. A conviction, even in a case inviting capital punishment, may be based on dying declaration alone, but the Court must be satisfied that it bears all the marks of truth.
16. So far as, I have been discussing the legal implications of dying declaration untrammelled by any authorities, though there is abundant authority including the high authorities of the Supreme Court on this subject. In Sher Bahadur and another v. The State reported in 1972 SCMR 651, it was observed:-- "The dying statement is undoubtedly the statement of an interested person, and in the facts and circumstances of the case it also required corroboration before it could be accepted. The evidence of P.W. Badiuz Zaman and the dying statement both having come from interested persons, one cannot be regarded as the corroboration of the other, for this would not be an independent corroboration. There is no independent corroboration available for the dying statement."
17. While examining the value of dying declaration made in almost similar circumstances Aslam Riaz Hussain, J. (as he then was) observed in Abdul Majid alias Majha v. The State 1976 P Cr. L J 545:-- "The statement of Mst. Bilqis (deceased) recorded by the A.S.I., too, could not be used as dying declaration as it was merely a statement under section 161, Cr.P.C. It was not recorded in the presence of the doctor nor did the A.S.I. Care to get it recorded through a Magistrate or any other independent official and the prosecution never pressed it as a piece of evidence against the accused/appellant. The case, therefore, hinges on the reliability of the witnesses."
18. The dying declaration which was recorded 22 hours after occurrence and during interval of 22 hours deceased remaining with relatives; such declaration was not acted upon Dildar Hussain v.
Muhammad Ashraf and 3 others 1978 SCM R 38.
19. The case of Boota v. The State reported in 1983 P Cr. L J 2110, is also relevant. At page 2115 it was observed:-- "The prosecution has also relied upon alleged dying declaration in the shape of 161, Cr.P.C.
Statement as well as oral dying declaration made before P.W. Imamdin and P.W. Inayat, soon after the incident. In this connection it may be noted, that the deceased remained alive 3 days after the incident, but the Investigation Officer did not think it right to get his statement recorded in the presence of doctor or get his statement recorded by a Magistrate."
20. Again no question about this dying declaration (Exh.25) was put to appellant in his statement recorded under section 342, Cr.P.C. This section is based on the principle involved in the maxim Audi Alteram Partem, that no one should be condemned unheard. Material evidence should be brought to the notice of accused to enable him to give an explanation. This object cannot be achieved by putting a composite question to accused. Such procedure followed by subordinate Courts must come to an end now.
21. For the above reasons it would be highly unsafe to rely upon the uncorroborated dying declaration (Exh.25) to record conviction against the appellant.
22. The recovery of blood-stained clothes from the person of appellant is again not proved through satisfactory evidence. Abdul Aziz (P.W.1) who is brother of deceased Nasrullah speaks of such recovery. There is, however, nothing on record to show that these clothes were ever sent to Chemical Examiner. No such report is available on record.
23. The recovery of dagger at the instance of appellant from dirty water of Lyari river is again not established. BOth Kushan (P.W.2) and Karamat Masih (P.W.3) have not supported such recovery and the evidence of two police officials, namely, Mulfammad Aslam F.C. (P.W.6) and S. Akhtar Butt, S.I.P. (P.W.7) cannot be acted upon in such a situation.
24. The evidence of motive is again not convincing. No incumbent duty lay on the prosecution to establish it. But, since an action without a motive is in a sense an effect without cause, the absence of evidence of an inducing cause may in many cases afford a strong presumption of innocence.
25. On over-all appraisement of the entire evidence in the case and on considering all the surrounding circumstances, I am of the opinion that the prosecution has failed to prove charge against the appellant beyond any reasonable doubt. The conviction recorded against him is, therefore, set aside.
' The appellant who is in custody be released forthwith, if not required in any otherl case. The appeal is accordingly accepted.
26. Before I part with this judgment, I would like to observe that the learned Additional Sessions Judge has not complied with the mandatory provisions o Q section 364, Cr.P.C. She has not appended the requisite certificate which is an illegality. The cases reported as Munshi v. The State 1985 P Cr. L J 1677; Muhammad Inayat and others v. The State 1985 P Cr. L J 469; Sabia Raza Nadeem v. The State 1986 P Cr. L J 1948; Allanditta v. The State 1986 P Cr. L J 1987 and Ashraf Mian v.
The State 1989 P Cr. L J 1079 are direct authorities on this subject.