Z. A. CHANNA, J.----Appellant Syed Naim Haider was tried along with one Rehanuddin by the learned Additional Sessions Judge, Karachi, under section 302/34, P. P. C., for committing the murder of Feroz A.I and while Rehanuddin was acquitted, the appellant was convicted of the said offence and sentenced to transportation for life and also to pay a fine of Rs. 1,000.00 or in default to suffer rigorous imprisonment for one year. He has appealed to impugn his conviction and sentence.
2. The prosecution case is, that on 15-7-1970, on receipt of telephonic message at 23-40 hours from Dr. Ansari, C. M. O., Civil Hospital, Karachi that one Feroz A.I, who was injured with knife, had been brought to the Civil Hospital, S. H. O. Muhammad Munir of Soldier Bazar Police Station went to the Civil Hospital and recorded the statement of injured Feroz A.I, after obtaining a certificate, Exh. 22, from the C. M. O. That the injured was in a fit state to make a statement. The story given by injured Feroz A.I in that statement, which was recorded at 00.30 hours, is that 4 or 5 months back he and his friend Kamil bad gone to Lalookhet, where the appellant and acquitted accused Rehanuddin bad beaten him, as according to them he had come to Lalookhet to see the girls of their Mohalla.
He further stated that on the night of the incident, at about 22-30 hours, he was standing outside Cafe Mannan, alongwith Abid, Rashid, Hakim and other acquain--tances, when the appellant alongwith acquitted accused Rehanuddin and two other friends arrived there, and when he enquired from Rehanuddin as to why the latter had got him beaten in Lalookhet, Rehanuddin started abusing him, while the appellant, who had a knife, stated that he was going to teach him a lesson for seeing girls, and on the appellant's instigation, Rehanuddin caught hold of him while appellant stabbed him with the knife on the left side of the belly, causing a bleeding injury, and thereafter the appellant ran away alongwith his knife, while Rashid brought him to the Civil Hospital in a motor rickshaw.
3. After recording the above statement, the S. H. O. Came to the Soldier Bazar Police Station, where he incorporated it in the F. I. R. Book. The S. H. O. Found the appellant at the police station. He had an injury on his person. The S. H. O. Arrested him and sent him to the Civil Hospital for examination. The S. H. O. Then proceeded to the scene of offence, which was pointed out to him by Abid A.I and prepared Mashirnama Exh.
9. It was on Nawab Bahaduryar Jang Road, opposite the dispensary of Dr. Muhammad A.I, at a distance of 12 paces from Cafe Mannan. No blood-stains or other marks were visible at the scene of offence. The S. H. O. Thereafter recorded the statements of Abid A.I.
Rashid, Hakim, Naseer, Ejazuddin, Arif, Moeenuddin, Ghiausuddin and Amir A.I. He then returned to the police station and the appellant who in the meanwhile had come back from the Civil Hospital, took the S. H. O. To Nishtar Park and from a latrine, which is at a distance of 200 paces from the scene of offence, produced one blood-stained knife, which the S. H. O. Secured in the presence of mashirs, Abid A.I and Arif, and prepared Mashirnama Exh.
6. On the same night, at 4-15 a.m., the S. H. O. Received information from the Civil Hospital about the death of injured Feroz A.I. He accordingly proceeded to the Civil Hospital and prepared the Inquest Report in respect of the dead body. It appears that further investigation in the case was conducted by a police officer who has not been examined.
4. Deceased Feroz A.I was first examined at the Civil Hospital by Dr. Ashfaq Hussain, R. M. O., who found the following injury on his person, which according to him appeared to have been caused by some sharp-edged object :-- "Incised wound left lower chest at the level of 7th rib mid clavicle line 1--' x --' x suspected cavity deep."
5. It appears that an operation was immediately performed on Feroz A.I but it was unsuccessful and he died at 4-10 a.m. That same night.
The autopsy on the body was performed by Police Surgeon, Dr. Mohd. Umar Khan, who on external examination found the same injury which had been seen by Dr. Ashfaq Hussain. He also found 4 or 5 other injuries on the deceased which were due to the operation performed on him. On internal examination, the Police Surgeon found that the diaphragm of the deceased had a cut on the left side and was stitched 2 long, the omentum was punctured on left side, the pancreas was conjected and was stitched 1" long the inferior venecania was punctured --' long and the plural and parietonial cavities contained blood. In the opinion of the Police Surgeon, the cause of death of the deceased was haemorrhage and shock due to external injury in the abdomen, which was sufficient in the ordinary course of human life to cause death.
7. The appellant was also examined by Dr. Ashfaq Hussain Ansari, who found the following injuries on his person, which in his opinion were fresh and were caused by some hard and blunt object :- "(1) Cont: bridge of the nose 1 'x 1' bleeding nose. Suspected fracture of nosal bone.
(2) Cont : upper lip 1' x --',
(3) Abr : left cheek 2' x --".
(4) Cont : right zygoma 1" x 1".
(5) Cont : left zygoma 1" x --".
An X-ray film was taken and it disclosed fracture of the nosal bone.
8. The appellant denied that he had either caused a knife injury to deceased Feroz A.I or that at his pointation a blood-stained knife was secured by the police. In respect of the injuries found on his person, his explanation in the committal Court was that they were the result of the beating which police had given him in an effort to force him to confess, while in the Sessions Court he stated that they were the result of a fall. To the question put to him in the Sessions Court, whether he had anything further to say, he gave the following reply:--- "On the day of incident there was a commotion and the people were running. I also joined them and ran towards the same direction. The crowd was about 500 persons. Near the Nishtar Park I fell down. Thereafter I alongwith the witnesses reached the police station in order to inform the police about this occurrence. All of us including the witnesses were detained at the police station. Later on next morning I was told that I was detained as an accused. The police had taken me near the Nishtar Park and they had pointed out and picked up the knife, Art. A., which I came to know for the first time. The police picked it up. I know nothing about this murder and I am innocent."
9. The main evidence on which the learned Additional Sessions Judge bas founded the conviction of the appellant is the dying declaration of deceased Feroz A.I. According to S. H. O. Muhammad Munir, on receipt .Of the copy of the F. I. R. At 11-45 p.m., he proceeded to the observation Ward of the Civil Hospital, where in the presence of P. W: Nasiruddin, he recorded the said statement, which was thumb marked by the deceased, and also attested by P. W. Nasiruddin. The S. H. O. In his evidence has not stated at what time this dying declaration was recorded, but Exh. 20 itself bears the date and hour of its recording, under the signature of both the S. H. O. And P. W. Nasiruddin, as 16-7-1970 at 00.10 hours. Since the deceased had sustained an extremely serious abdominal injury, as a result of which he died within six hours, and as the dying declaration was admit--tedly not recorded in the presence of a Magistrate or a doctor, the question that arises for consideration is, whether the deceased was in a position to make that statement. S. H. O. Muhammad Munir has stated that he recorded the dying declaration with the permission of the C. M. O., which he had obtained in writing. The said permission has been produced by him as Exh.
22. It bears an endorsement, apparently over the signature of the C. M. O., to the effect that the patient is fit to give statement and was being admitted in the S. W. (Surgical Ward)
3. The then C. M. O., Dr. Ashfaq Hussain Ansari, was examined but this endorsement was not put to him, nor was he asked whether he had accorded permission to the S. H. O. Who recorded the statement of deceased Feroz A.I or that the latter was in a fit condition to make a statement. On the contrary, Dr. Ashfaq Hussain Ansari has stated that the injured was cold, perspiring and in a state of shock and that he is not in a position to state if the deceased was able to talk. The Police Surgeon, who performed the autopsy, was somewhat more specific and stated that as a result of the injuries sustained by the deceased, there must have been profuse bleeding, and this is liable to make the patient unconscious and sink. The S. H. O. Has also not explained why the dying declaration was not recorded in the presence of the C. M. O., who admit--tedly was available. Even where a Magistrate records a dying declaration in a hospital, it is invariably done in the presence of a doctor. This is much more necessary where it is recorded by a police officer, for the purposes of establishing the fact that the person making it was in a fit condition to make it. P. W. Nasiruddin, in whose presence the dying declaration is said to have been recorded, denied that it was recorded in his presence and stated that he had signed it because the police officer had told him that Feroz A.I had given this statement. This witness was a neighbour of the deceased and had gone to see him at the Civil Hospital. His sympathies thus clearly lay with the deceased. Viewed in this context, his denial of the fact that the statement of the deceased was recorded in his presence and his explana--petition of how he came to sign it, are significant and cannot be explained on the hypothesis, which found favour with the learned Additional Sessions Judge, that he has been won over by the appellants, and for which there is no foundation whatever. Another circumstance which case suspicion on the dying declaration is that although admittedly the deceased was literate, his L. T. I. Was taken thereon. The explanation given by the S. H. O. For this is that the deceased at that time was being given glucose injection in the arm. Again, there is no other evidence in support of this explanation by the S. I. P. Exh. 20 itself makes no mention of the fact that the deceased was---unable to sign because of the injection. No doctor or other person has deposed to the fact that the deceased was then being given an injection in the arm. Even the S. H. O. Has not clarified whether the deceased was being given the injection in the left or in the right arm. It may further be pointed out that according to the Police Surgeon the deceased had an injury on his ankle, which was the result of intervenes drips. The Police Surgeon has made no mention of any mark on any arm of the deceased for glucose injection. The combined effect of all these circumstances is that we are not satisfied that the deceased made such a statement and the possibility of the thumb-impression of the deceased having been taken thereon without the deceased having made the statement or while he was in an unconscious state or incapable of making a statement cannot be excluded.
10. Even if the evidence of the S. H. O. Be accepted that the dying declaration, Exh. 20, was actually made by the deceased, it would not be possible to place any reliance thereon. Although the dying declaration implicates not only the appellant but also Rehanuddin, it was not relied upon by the learned Additional Sessions Judge in respect of the latter, who was acquitted. According to the dying declaration, the deceased was standing alongwith P. Ws. Abid, Rashid, Hakim and other acquaintances outside Cafe Mannan, when the appellant stabbed him. The aforesaid named three persons were examined, but they not only denied that they were with the deceased at the time of the incident, but further denied even having witnessed the fatal assault on the deceased.
According to them, the three of them were standing together when they heard commotion and cries, whereupon there was a rush of people and they found the deceased lying injured and bleeding. Furthermore, the dying declaration does not explain how the appellant came to sustain injuries, one of which was of a grievous nature, involving fracture of the nasal bone. The allegation of the appellant in the committal Court that these injuries were the result of a beating given to him by the police appears to us to be devoid of any substance as also his explana--petition in the Sessions Court that they were due to a fall, as according to Dr. Ashfaq Hussain Ansari, these injuries were the result of dandy blows. The learned Additional Sessions Judge, in his judgment, has not considered this important circumstance or its implications.
11. It is clear from the evidence of P. Ws. Abid, Rashid and Hakim that the appellant was present at the scene of offence when the deceased was---stabbed. Even the appellant has admitted his presence in his statement. His mere presence, however, neither lends support to the dying declaration nor is indicative of his guilt, for the place where the incident occurred is a public road.
There is divergence among the aforesaid three witnesses as to the conduct of the appellant after they found the deceased had been stabbed. According to P. W. Abid, the appellant was found running and was chased by a number of people, whereupon he and P.Ws. Arif and Hakim also chased the appellant, apprehended him and took him to the police station. The version of P. W.
Rashid is that he saw both the accused at the scene of offence. He makes no mention of the appellant being either chased or their apprehending him and producing him at the police station.
The version of P. W. Hakim is still different. According to him they found the appellant fallen on the ground near the latrine of Nishtar Park and bleeding from his face. 1n view of the contradictory versions given by these witnesses, it is not possible for us to hold anything more than that the appellant was, present at the scene of offence, but as to what part, if any, he played in the assault on the deceased, there is no definite evidence.
12. The only other piece of evidence against the appellant is that a knife, which according to the report of the Chemical Examiner is stained with human blood, was recovered from near the latrine of Nishtar Park, at his, pointation. Even in regard to this, the evidence is contradictory for whereas S. H. O. Muhammad Munir has deposed that the appellant had taken him and Mashirs, Abid and Arif, to Nishtar Park and from near the latrine he produced one blood-stained knife, according to P. W.
Arif, the appellant took the police to Nishtar Park, where a knife was lying which the appellant picked up on the orders of the police officer, while according to P. W. Abid, the police took the appellant and Mashirs to the place where the appellant had been caught, where after great search the police found a knife in the garden near the bushes. In view of contradictory nature of the evidence as to the place from where the knife was secured and the circumstances in which it was secured, it is not possible to bold that it was produced by the appellant or even that it was secured at his pointation. Even if we were to accept the evidence of the S. H. O. That the appellant had produced it, then also it would at best indicate that the appellant had the knowledge where the knife was to be found. Since the appellant admittedly was present at the scene of offence, even if someone else had committed the murder and thrown the knife, he may well have seen the knife being thrown and thus acquired knowledge of the place where it was to be found.
13. We are accordingly of the opinion that the case of the appellant is not free from reasonable doubt. The learned counsel appearing for the State has frankly conceded that the evidence against the appellant is of doubtful nature. We would accordingly set aside the conviction and sentence of the appellant, accept his appeal and direct that he should be forthwith set a liberty, if not required in any other case.