' On 18-1-1972 at 15-15 hours, the complainant Shah Mir son of deceased Muhammad Hassan Bhunger lodged First Information Report with the S. H.
0., Police Station, Jacobabad. The complaint read that the complainant along with his father had that morning come to Jacobabad and were staying at the machine of P. W. Haji Muhammad Siddiq Soomro. At about 2-30 p.m. When the complainant returned from the bazar where he had gone for some work he saw from the Southern door of the said machine that his father Muhammad Hassan was sitting on a cot in the otak, besides the machine. He saw the appellants, Abdul Karim and Hadi Bux both sons of Muhammad Qasim Bhunger armed with single barrel guns standing on the Eastern outer door of the otak together with the acquitted accused Sikandar and the absconding accused Shah Nawaz. The latter two instigated the appellants to shoot at Muhammad Hassan at his heart with the guns whereupon the appellants unanimously opened a gunshot each on his father within the sight of the complainant. Both the shots struck the right leg of Muhammad Hassan who crawled from under the cot and sought shelter of the walls inside the machine. The complainant alleged that the acquitted accused Sikandar and the absconding accused Shah Nawaz abused the appellants that they had not shot Muhammad Hassan at his heart and that he will recover. At this relevant time, according to the complainant, he was taking shelter in the wall of the machine but for which the accused would have found him and they would have opened fire upon him also. The complaint went on to state that the gun report attracted many persons. After a shortwhile the injured Muhammad Hassan went unconscious and the accused ran away on seeing the people approaching. According to the complainant he narrated the facts to P. Ws. Haji Muhammad Siddiq and Hidayatullah who had collected on hearing the gun report and that his father had been removed to the hospital for treatment. As regards the motive the F. I. K. Stated that two days prior to the incident the accused persons alongwith one Hakim Ali Shah had come to Muhammad Hassan and asked him not to give his daughter in marriage to his nephew Reham Ali and demanded the same hand for them. Haji Muhammad Hassan refused whereupon they threatened him with his own murder and that of his son.
2. The First Information Report was recorded by S. H. O. All Muhammad P. W. 19 who deposed that prior to the recording of the F. I. R. He had received telephone message that Muhammad Hassan had received gunshot injury at the machine of P. W. Haji Muhammad Siddiq at 2-30 p.m. He proceeded to the scene of offence and learnt that the injured had already been removed to the hospital. The S. H. O. Then went to the hospital and recorded the statement of the injured, Exh. 25, which was admitted by the learned Sessions Judge as a dying declaration. Immediately after the S. H. O. Had recorded the F. I. R. Of Shah Mir he received a message from the Medical Officer that the injured Muhammad Hassan was in a serious condition and, therefore, arrangement be made for recording his dying declaration. The S. H. O., in compliance, sent a letter to Head Munshi and P. C. M.
Mr. Kadir Bux requesting him to record the dying declaration of the injured. The S. H. O. Then went to the scene of offence from where he secured the rice, plate and the blood-stained earth from the ground below the cot, recorded the statements of P. Ws. Haji Muhammad Siddiq and Hidayatullah.
On the same day he found appellant Hadi Bux in the market whom he arrested at the Plantation of complainant, Shah Mir. Appellant Hadi Bux was armed with a single barrel gun, which together with 12 live cartridges were secured from him and so also its licence and some cash. On transfer of the S. H. O. On 20th January 1972, further investigation was handed over to his successor, Fateh Ali, P. W.
10, who on receiving information of the death of injured Muhammad Hassan converted the offence as one under section 302, P. P. C. On 28-1-1972, he arrested the other appellant Abdul Karim from his village Abdur Rehman Bhanger but search of his house did not produce anything incriminating.
Among the witnesses whom he examined was Hakim Ali Shah whose name appeared in the reserved list of the prosecution witnesses.
3. In so far as deceased Muhammad Hassan is concerned the prosecution has relied upon his three dying declarations. The first is the oral one made to P. W. Haji Muhammad Siddiq who had enquired from Muhammad Hassan, in the presence of the complainant Shah Mir, and was told by the deceased that the appellants had fired at him with guns and that two or three other persons had accompanied the appellants whose names, however, he did not give. P. W. Hidayatullah who had also come at the scene on hearing the gunshot heard the deceased mentioning the names of the appellants as the persons who had fired at him. He, however, did not see at the vardat the complainant Shah Mir whom he did not know prior to the incident. The dying declaration in writing relied upon by the prosecution is Exh. 25, recorded as section 161 statement by the S. H. O. Prior to the recording of the F. I. R. In this dying declaration the deceased Muhammad Hassan stated that he had come to Jacobabad on the morning of the incident with his son Shah Mir from Pat Feeder and while he slept at the otak of P. W. Haji Muhammad Siddiq Soomro near his machine, his son Shah Mir went to bazar for some work. At about 2.30 p.m. P. W. Haji Muhammad Siddiq served him with rice and potatoes and went away. He sat on the cot to eat, his face was towards eastern door of the otak. He saw the appellants armed with single barrel guns and the acquitted accused Sikandar and the absconding accused Shah Nawaz empty-handed. The latter two instigated the appellants to shoot at his heart which was responded to by unanimous gun fire by the appellants at the deceased which hit his right leg. The deceased took shelter behind the wall beside the door which opened towards the machine and shut the shutter of the door. The gun report attracted many persons and the accused ran away. The deceased went on to say that the complainant Shah Mir also witnessed the incident with his eyes as he had also at that time entered the machine from the eastern door and concealed himself in the shelter of the wall and that the accused had not spared him too. The deceased further stated that he narrated the facts to P. Ws. Haji Muhammad Siddiq Soomro and Hidayatullah. As regards the motive the deceased stated that two days prior to the incident the accused had brought Mian Hakim Ali Shah to his village and asked him not to give his daughter Mai Zainab in marriage to his nephew's son and demanded the hand of the woman for them. The deceased refused and Mian Hakim All Shah and the accused threatened him and his son with murder if be did not change his mind. The other dying declaration was recorded by the H. M. & III C. M , Jacobabad. In this dying declaration, in so far as the incident is concerned, there is this much further addition that the deceased had heard the acquitted accused Sikandar and absconding accused Shah Nawaz abusing the appellants saying that they had not shot the gun at his heart and that the man will recover. No mention was made in this dying declaration of the deceased having repeated the facts of the incident to any of the P. Ws. Or that the deceased's son, complainant Shah Mir had seen the incident. All that was said was that many people had collected after the incident and he also went unconscious. In so far as the motive was concerned there was this addition that the hand of daughter Mai Zainab was asked in exchange of a woman in marriage to his son, which the deceased refused as they had previously misappropriated an amount paid by him to them. This dying declaration attributes the threat of deceased's murder and that of his son to Mian Hakim Ali Shah, and further added that Hakim All Shah and the appellant Abdul Karim had reminded him about the earlier murder of his son at their hands.
4. The complainant Shah Mir in his deposition before the learned Sessions Judge alleged that all the accused were related to him and lived in Noorwah a village for miles away from Jacobabad while his village in Tehsil Jhatpat was at a distance of 10-12 miles from Jacobabad. Prior to the incident the appellants and others had come to his father, the deceased, and demanded the hand of his sister Mst. Zainab which was refused as Zainab had already been given to his nephew Reham AU whereupon the accused persons held out threats to his father and went away. As regards the incident, the complainant stated that he alongwith his father reached Jacobabad a day earlier and were stying in the machine of P. W. Haji Muhammad Siddiq. At about 2-30 or 3 p.m. He had just arrived from the bazar and was standing at the gate of the machine when he heard the gunshot report and found for persons standing at the outer door of the machine, being the appellants and the acquitted and the absconding accused, and while the former two were armed with guns the latter were empty-, banded. At that time his father was sitting on the cot in the otak and was hit by the gunshot. The acquitted accused Sikandar and the absconding accused Shah Nawaz asked the other accused that they should fire at the complainant also. The accused ran away. Many people had come to the vardat but he did not remember the names nor did he tell anybody of the incident because he was upset. He then went to the Police Station and lodged the F. I. R. And brought the Police to the vardat but prior to the removal of his father from the hospital he made enquiries from his father who was still in senses, and was told that the appellants had fired at him with gun and they were accompanied by Shah Nawaz and Sikandar. His father was kept at Jacobabad Hospital for a day and thereafter he was taken to L. C. M. Hospital, Jamshoro where he died on the next day of his arrival. In his cross-examination on the question of motive he alleged he was present along with his father when 3 days prior to the incident the appellants had come to demand the hand of Mst. Zainab. He admitted that no application had been made to the authorities that the accused had held out threats. He stated that before his arrival on the ,scene of offence he had gone to the bazar for making purchases but he kept the articles purchased with Jumo shopkeeper. When cross-examined regarding the incident he stated that the accused had fired just at that time and that they had fired two gunshots from 4 paces away from his father that he was able to see all the for accused from the place where he was standing and that the acquitted accused Sikandar had also seen him standing at the door but the accused did not fire at him because he had hidden himself inside the room; that his father was in senses after the incident and he had not accompanied his father to the hospital and he did not know how his father was carried to the hospital. S. Next I come to what has been described as the corroborative evidence of P. W. Haji Muhammad Siddiq the owner of the machine where the incident took place. The incident, according to P. W. Haji Muhammad Siddiq took place at 1 p.m. The witness had served food to the deceased and returned to his house. He saw the deceased taking food in the otak. While in his house, he heard gunshot report in his machine whereupon he came to the otak and saw the deceased lying injured below the cot. He did not see any other person. He enquired from the deceased who told him that the appellants had fired at him with guns and two or three persons had accompanied the appellants whose names were, however, not given. Many persons of the locality including P. W. Hidayatullah had also reached the vardat on gun shot report. Complainant Shah Mir also arrived at that time and was present at the vardat when the witness talked -to Muhammad Hassan. P. W. Hidayatullah was also present at that time. The witness denied that the deceased Muhammad Hassan had gone unconscious after the incident.
6. The other corroborative evidence is of P. W. Hidayatullah who on hearing the gunshot reports from the machine of Haji Muhammad Siddiq came there and found the deceased lying injured with gunshot wound in his right leg. He was able to speak and was speaking to P. W. Haji Muhammad Siddiq mentioning the names of the appellants as the persons who had fired at him.
He did not know complainant Shah Mir. He had not seen him at the vardat. He also did not know who had carried the injured to the hospital.
7. The learned Sessions Judge acquitted the accused Sikandar. Ha believed the evidence led on his behalf that Sikandar was on the day of the incident at Thur at a distance of 25 miles from Jacobabad and that it was not possible for him to be present at Jacobabad at the time of the incident and also to attend the duties at Thur. He was also of the view that there was possibility of Sikandar having been implicated due to enmity and-the case against him had not been established beyond reasonable doubt. In so far as appellants Abdul Karim and Hadi Bux were concerned the learned Sessions Judge found that though they had been charged for an offence uncer section 302/34, P. P. C. The offence proved against them fell under section 326/34, P. P. C. And sentenced them to -suffer R. I. For 10 years each and also to pay a fine of Rs. 1,000 or in default of payment of fine to undergo R. I. For six months each. As regards the additional charge against Abdul Karim under section 13-D of the Arms Ordinance, the learned Sessions-Judge held that as the appellant Abdul Karim held a licence for the gun it had not been established beyond reasonable doubt that he was armed with an unlicensed gun at the time of the incident. The learned Sessions Judge held that the three dying declarations of the deceased were themselves sufficient to-warrant the conviction of the appellants under section 326/34, P. P. C. But if any corroborative evidence was required the same was available in the evidence of the complainant Shah Mir, the two prosecution witnesses Haji. Muhammad Siddiq and Hidayatullah and the motive alleged and proved at the trial.
8. Mr. Imdadally H. Agha, the learned counsel for the appellants, streuously contended that the learned Sessions Judge has erred in basing the conviction almost entirely on the dying declarations of the deceased. He pointed out various discrepancies in the three dying declarations.
The two P. Ws. Haji Muhammad Siddiq and Hidayatullah do not state that the deceased went unconscious, and though the deceased is said to have narrated the facts to them, which must have obviously included the names of the accused Sikandar and Shah Nawaz as instigators, the two prosecution witnesses say that only the appellants had been named. Again according to the deceased, complainant Shah Mir had witnessed the incident but according to P. W. Haji Muhammad Siddiq "Shah Mir also arrived just at that time" namely the time when many persons of the locality including Hidayatullah had also reached the vardat on gunshot report. The deceased in his 161 statement, unlike in his dying declaration recorded by the Magistrate, omitted to mention that he had gone unconscious or that accused Sikandar and Shah Nawaz abused the appellants for having not shot the deceased at his heart and that he will recover. Again according: to 161 statement the deceased "narrated the facts to the P. Ws." while in his dying declaration only stated that "later so many people collected and I also went unconscious". The allegations relating to motive in the two written dying declarations are different. No mention was made in 161 statement, as in the dying declaration, that hand of Mai Zainab had been demanded in exchange of a woman in marriage to his son or that he refused to do so as the accused had previously misappropriated an amount paid to them. What is, however, more important to my mind, and it was so urged by the learned counsel, that in the dying declarations the deceased had implicated the acquitted accused Sikandar and this implication was quite clearly false; The evidence that was led on behalf of the acquitted accused Sikandar establishes his alibi beyond reasonable doubt and the learned Sessions Judge rightly believed this evidence and acquitted the accused Sikandar. Therefore, though in law a conviction of an accused can be based entirely on the dying declaration of the deceased if the facts and the circumstances of the case so warrant such declaration must find independent and reliable corroboration if it falsely implicates an innocent person. Moreover, in the present case statements made, though dying declaration in the eye of law, do not posses any particular sanctity for the deceased was not under any mortal fear o under an immediate apprehension that his Day of Reckoning had arrived. In these circumstances the discrepancies in the dying declarations made b the deceased assume some importance and it would therefore be singularly inappropriate to base thereon the conviction of the appellants. We must, therefore, of necessarily look for reliable corroboration.
9. The learned Sessions Judge held that if at all any corroboration was necessary it is provided by the ocular evidence of complainant Shah Mir. Mr. Imdadally Agha contended not without force that this witness was an' interested person and apart from the discrepancies in his F. I. R. And in his deposition, was equally anxious with the deceased to rope in innocent accused Sikandar. The departures made by this witness in the F. I. R. And in his deposition are of some importance. In the F.
I. R. Unlike in his deposition no allegation was made that accused Sikandar and Shahnawaz instigated the appellants that the accused abused the appellants that they had not fired at the heart of the deceased and that he will recover. In his F. I. R. The complainant Shah Mir stated that the deceased after a shortwhile went unconscious while in his evidence he stated that while he was at the vardat his father was in senses after the incident. Again according to the F. I. R. The complainant narrated the facts to the P. Ws. Siddiq andHidayatullah while in his deposition he stated that though many persons had come to the vardat but he did not remember their names.
He did not recall P. W. Muhammad Siddik though this witness had been brought to the Court on a cot and his evidence had been recorded on the same day. In the F. I. R. It was not alleged that the deceased told him anything but in his deposition went on to say that he had at the vardat inquired from his-father, though he had himself allegedly witnessed the crime and identified the assailants, who told him that the appellants had fired at the deceased and they had been accompanied by accused Sikandar and Shah Nawaz. The two P. Ws. Who were allegedly present at the same time, however, do-not say that Sikandar and Shahnawaz had been named by the deceased. Moreover, the appearance of Shah Mir at the scene of offence exactly at the time of its commission is open to doubt. Mr. Manzoor Hussain, the learned counsel for the State quite frankly conceded that it was more than doubtful if the complainant Shah Mir had seen the incident. He is supposed to have arrived at the scene from the bazar where he had gone to-make purchases but since no purchases were found with him when he arrived at the vardat the explanation offered was he had left the purchases with the shopkeeper. As to what these purchases were so as to be more conveniently retained with the shopkeeper, we have no evidence. What is more strange however is that though the witness found his father seriously injured with the bullet wounds, he disappeared from the scene without making any arrangement to take his father to the hospital and he even does not know how and by whom his father was taken to the hospital. In these circumstances in my view the evidence of complainant Shah Mir does not furnish the required corroboration. Then I come to the corroborative-evidence of P. W. Muhammad Siddiq and Hidayatullah. There is no unanimity in the evidence of these witnesses, the statements of the deceased and the complainant Shah Mir as to who said what as regards the culprits. The learned Sessions Judge appears to have been impressed by their evidence in so far as they stated that the deceased had named the appellants, as persons who had fired at him. At its host, therefore, according to these two witnesses, the deceased named the appellants as the offenders. In my humble view such evidence cannot furnish decisive corroboration.
10. Mr. Manzoor Hussain, the learned counsel for the State pressed into service the evidence relating to motive as corroborative evidence. On motive we have the F. I. R., the deposition of Shah Mir and the two written dying declarations. I have in the earlier part of my judgment already referred to not so insignificant variations in the evidence. Moreover, the prosecution failed to examine Mian Hakim Ali who is said to have accompanied the accused when they went to ask for the hand of Mai Zainab though he was cited as a prosecution witness in the reserved list. It is also difficult to believe that though on this occasion the deceased was threatened with his own and his son's life no complaint of any kind was made to any authority. I have remained unimpressed with the evidence of motive.
11. Mr. Manzoor Hussain lastly contended that the Court should put to itself the serious question as to why the deceased and the complainant should falsely implicate the appellants and thereby let off the real culprits. This contention no doubt merits consideration but I am unable to see how ear conviction can be based on this assumption, howsoever reasonable, in the absence of credible evidence as regards the involvement of the accused in the crime in question. Facts and circumstances must, without doubt, support such an assumption. Human mind is a bottomless pit of varied emotions and conviction cannot be rested only on such an assumption. It is difficult to believe that the appellants who had allegedly the intention to murder the deceased, fired, from a distance of 6 feet only, at his right leg. It is also not known how the appellants came to find that the deceased would be at Jacobabad, at the ouk of P. W. Muhammad Siddiq to be available for murder. Admittedly, the deceased and his son had travelled 10-12 miles from their village to Jacobabad and if it was really the intention of the appellants to kill the deceased more appropriate opportunity was in the course of their journey to Jacobabad. Lastly, the appellant Hadi Bux made no attempt to flee for he was arrested by the Police on the same day from the bazar of Jacobabad with the weapon allegedly used in the commission of the offence in his possession.
12. The result is that the prosecution has failed to prove beyond reasonable doubt that the appellant's had committed the offence with which they had been charged and these appeals are accordingly allowed and the conviction of the appellants is set aside. The appellants will at once be released from jail unless detained in any other case.