This appeal having arisen out of the judgment dated the 30th of August 1969 of then Sessions Judge, Campbellpur, was instituted in Peshawar Bench of the West Pakistan High Court in accordance with rules prescribed in those days but on the disintegration of the Province it was forwarded to this Court and registered as No, 529 of 1970.
2. In this case Abdur Rashid and Muhammad Amin appellants were tried along with their two brothers Abdur Rauf and Muhammad Rafiqe residents of Yasin Kalan on a charge under section 302/34, P. P. C. For committing in furtherance of their common intention the murder of Muqaddar Shah (deceased) of Said Khail Nurtopa on 9th of January 1968, at rotiwela in the area of village Yasin Khurd of Police Station, Hazro.
3. The motive for this murder as alleged in the first information report was the beating given by Muqaddar Shah (deceased) to Abdur Rashid appellant in the course of an altercation about some money matters in the month of Baisakh preceding this occurrence. Akbar Shah, a brother of the deceased had also quarrelled with Abdur Rashid appellant in May 1967 as reported to the police vide Exh. P. R (copy placed on record). These matters were, however, patched up through the intervention of the respectables of the ilaya. To avenge the same Abdur Rashid appellant and his three brothers Muhammad Amin appellant, Abdur Rauf and Muhammad Rafique (the acquitted accused) are said to have laid in a successful ambush for him on the eventful day.
4. It was alleged that Muqaddar Shah (deceased) was proceeding along with Warris Shah (P. W. 12) and Shamroz Khan (P. W. 13) on the road leading from village Yasin Kalan to the house of Said Akbar (the father-in-law of Warris Shah, not produced) and as they reached near the graveyard of village Yasin Khurd the two appellants and their two brothers (the two acquitted accused) suddenly emerged from the northern corner of its wall. Abdur Rashid had a knife, Amin a Khurdam, Abdur Rauf a knife and Muhammad Rafique a shovel, who fell upon Muqaddar Shah. Abdur Rashid appellant opened the attack by giving knife blow in his abdomen and chest followed by two knife blows by Abdur Rauf one in his neck and the other on his left hand. Thereafter Muhammad Amin appellant delivered a Khurdam blow on his head followed by a shovel blow by Muhammad Rafique which felled him to the ground. On the alarm raised by Warris Shah and Shamroz Khan P. Ws-Sher (not produced) was attracted there and witnessed the occurrence. Seeing him arrive the assailants made good their escape. They the n attended to the unfortunate victim of this ambush and putting him on a cot brought by Sher P. W. From his nearby but rushed him to the police station with the assistance of Najab Khan (P. W. 11), Ayub, Muhammad Khan and Ashraf (not produced) where Moharrir A. S. I. Muhammad Siddique (P. W. 10) received him at 1-15 p.m. And recorded the statement (Exh. P. V. Of Muqaddar Shah who was alive at that time).
5. The A. S. I. Incorporated his injuries in the karwai police under this F. I. R. And forwarded him along with his injury sheet (Exh. P. W.) through Foot Constable Ghulam Husain to the Civil Hospital situate at a distance of two furlongs from this police station.
He then deputed Head Constable Muhammad Aslam (P. W. 15) for the investigation of the case, who first went to the hospital where he recorded the statements of Najaf Khan (P. W. 11), Warris Khan (P. W. 12) and Shamroz Khan (P. W. 13). Foot Constable Ghulam Husain (P. W. 3) produced before him shirt (P. 4) and shalwar (P. 5) of Muqaddar Shah (then alive ) which he took into possession vide Exh. P. N. He had also made a query from the doctor about his fitness to make a statement vide Exh. P. Z., but his opinion endorsed at Exh. P. Z/1 was in the negative.
In the meantime Sub-Inspector Tanawar Zaman (P. W. 14) reached the hospital and took over the investigation from him. The Sub-Inspector reached the spot at 8-15 p.m. The same evening and secured the blood-stained earth from there vide Exh. P. A.
On the next morning Muhammad Rafique (acquitted accused), Abdur Rashid and Muhammad Amin appellants appeared before him and produced shovel (P. 1), knife (P. 2) and Muni (P. 3) vide Exhs. P. B., P. C. And P. D. Respectively.
He also found injuries on their person as incorporuted in the injury sheet Exhs. P. S., P. U. And P. T.
Respectively and got them medically examined through Foot Constable Ghulam Hussain (P. W. 3).
He got prepared the site plan Exh. P.0. With its duplicate Exh. P. 0/1 from Asghar Ali Shah Patwari (P.
W. 8) and putting his notes in red ink he signed the same in token of its correctness.
6. On 9th January 1968, at 1-30 p. m., Dr. Abdul Majid (P. W. 1) examined Muqaddar Shan (then alive) and found the following injuries on his person vide Exh. P. E.
(1) A stab wound left side of abdomen 3" x 1-1/2" abdominal cavity deep, 1" above the superior iliac spine oblique in direction. A portion of the gut and omentum was protruding out of the wound, profusely bleeding from the wound, and a portion of the gut was found punctured.
(2) An incised wound on the right side of abdomen 1/1/2 x X skin deep cut over the shirt was present.
(3) An incised wound on the left side of the chest front 1/2" x skin deep.
(4) An incised wound on the left shoulder 3/4" skin deep.
(5) A contused wound on the left side of the head forehead 1/2" x skull deep.
(6) A contused wound on the left side of head 3/4" x x skull deep.
(7) An incised wound in the left first interdigital space 1" x x
(8) An incised wound on the right shoulder blade 1" x I".
Injury No, 1 was dangerous to life while the rest were simple.
On 10th January 1968, at 10-00 a.m. The same doctor held the autopsy on the dead body of Muqaddar Shah (deceased) and found the same injuries as incorporated in Exh. P. E. On opening the abdomen large intestines were found empty and a portion of the gut was found stitched which was cut under injury No,
1. Death in his opinion was due to shock and haemorrhage as a result of injury No, 1 which was sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injury and death was about 18 hours, while between death and post-mortem about seven hours. Exh. P. F. Is the post-mortem report.
On 11th January 1968, at 10-30 a.m. The doctor examined Abdur Rashid appellant and found the following injuries on his person vide Exh. P. G:--
(1) An incised wound on the hack of terminal digit of right index finger 1/16' skin deep.
(2) A minor abrasion over the back of first digit of right index finger . 1
(3) A superficial scratch over the palmer aspect of left hand near the thumb 3/4"
(4) A superficial scratch over the palmer aspect of left hand 1/4" x 1/16" towards the little finger.
(5) A superficial scratch over the terminal digit of left thumb palmer aspect.
(6) A minor abrasion 1/8' 1/8' over the back of right middle finger terminal digit.
All the injuries were simple. On the same day at 11-00 a.m. The doctor examined Muhammad Amin appellant and found the following injuries on his person vide Exh. P. H.: -
(1) An incised wound on the terminal digit of left little finger palmer aspect i" x 1/8' skin deep.
(2) An incised wound on the second digit of left ring finger 3/8" f 1/16" skin deep.
Both the injuries were simple.
On the same day at 11-15, the doctor examined Abdur Rauf and found a superficial scratch 3/8' 1/16" - skin deep on the first digit of left hand thumb aspect (palmer). The injury was simple.
7. After the death of Muqaddar Shah (deceased) the case was altered to that under section 302/34, P. P. C. And his statement recorded under section 154, Cr. P. C. Was placed on the file as dying declaration.
8. In addition to the above detailed medical evidence and that of recoveries the prosecution had relied for its case on the statement Ex. P. V. Of Muqaddar Shah as his dying declaration supported by the oral testimony of Warris Shah (P. W. 12) and Shamroz Khan (P. W. 13) who were said to have accompanied him on his last journey from the village.
9. It may not be out of place to point out here that none of the three weapons allegedly produced by Muhammad Rafique, acquitted accused and the two appellants Abdur Rashid and Muhammad Amin were shown to be stained with blood so the recovery of the same at their instance could be of no consequence for the prosecution.
10. The two appellants denying all the allegations made against them pleaded not guilty and setting up a plea of self-defence A bdur Rashid had put forth his version of the occurrence in his statement under section 342, Cr. P. C. As under:- "Some days before the occurrence Muqaddar Shah sent Rs, 5 to my brother Rafiq accused through somebody. He had bad intentions towards his. That person mistakenly delivered the amount to my brother Muhammad Amin, who took the money and resented the gesture. On the day of occurrence in the morning, I and Muhammad Amin were present in our wheat field adjacent to the road towards west and were busy in weeding out 'bhukar with the help of hoes. Deceased came on a bicycle and stopped on the road side. He demanded the same amount from Amin, who refused to give it. The deceased started a quarrel, left his cycle on the way, came inside our field and attacked Muhammad Amin with a knife injuring him on his hand when the latter warded off the blow. I was at a distance of 10 paces and came to the rescue of my brother. I was also attacked by the deceased with the knife. I received an injury. I grappled with him and wanted to snatch the knife, which I actually did snatch. He picked up my hoe and we injured each other in the quarrel which proceeded on. Haji Ahmadji, Yunus, Mirdad and others including Sher, Husain etc. Reached the spot and separated us. The deceased was taken out of our field by them and later placed on a cot which was brought to the road side. My two brothers Rafique and Abdur Rauf accused were not present at the time of occurrence nor were Waris and Shamroz P. Ws. My co-villagers carried the injured towards pacca road. I had acted in self-defence of our persons and property. I had no previous against the deceased. Waris and Shamroz P. Ws. Are connected with the deceased and belong to his village."
He produced Mirdad and Yunus D. Ws. In his defence.
Muhammad Amin appellant had also endorsed the same plea while their two acquitted accused had denied their participation in this occurrence.
11. Learned Judge rejected their defence, but giving the benefit of doubt to Abdur Rauf and Muhammad Rafique, their brother, acquitted them of the charge and convicted the two appellants under section 304(1) read with section 34 of the Pakistan Penal Code instead of 302/34, P. P. C. As a case of sudden fight without any previous
12. The two appellants have challenged this finding before me as unsustainable in the absence of any credible evidence from the prosecution side to bring home any offence against them rendering the rejection of their defence wrongful in law.
13. Ongoing through the evidence with care in the light of the arguments addressed by their counsel Mr. Muhammad Jafar, Advocate, I am persuaded to agree with these contentions.
14. In fact the learned Judge without discussing the evidence of the two alleged eye-witnesses Waris Khan and Shamroz Khan had from the very outset embarked upon the scrutiny of the defence version and rejecting the same had held the two appellants guilty of lesser offence under section 304(1) read with section 34 of the Pakistan Penal Code acquitting the two appellants of the main charge under section 302/34, P. P. C. Along with the other two accused.
15. The prosecution having accepted his conclusions had preferred no appeal under section 417, Cr.
P. C. To question its correctness although the learned Judge had expressed some doubts about dying declaration (Exh. P. L.) the corner stone of the edifice of their case, by making the following observations in the judgment itself :- "According to the doctor, injuries of Abdur Rashid and Muhummad Amin accused are contemporaneous with those of the deceased, and that injuries 1 and 3 to 5 of Rashid were caused with sharp-edged weapon. Similarly, according to the doctor, injuries 1 and 2 were possible, if sharp-edged weapon was used against him. It is not the prosecution case that either Abdur Rashid or Muhammad Amin accused was injured by their companions, Not only this, it is not mentioned in the dying declaration Exh. P. V. Or in the ocular evidence as to how the two accused received their own injuries. In the absence of any suggestion or explanation, I am of the view that the two accused viz. Abdul Rashid and Muhammad Amin received their injuries at the hands of the deceased. This omission on the part of the prosecution goes a long way to show that the prosecution withheld some material facts favourable to the accused. If the deceased and the two eye-witnesses withheld some material facts, they can easily increase the number of the accused from two to four. It is true that Rauf accused had also a superficial scratch on his person but according to doctor, it could possibly be caused during the course of Zamindara work. So, it is a general tendency in this part of the country that some innocent persons are roped in along with the guilty ones and while major role attributing to the real culprits, a minor one is always given to the innocent persons. In the instant case, the deceased and the eye-witnesses also spread their net so wide that they implicated Abdur Rauf and Muhammad Rafique by exaggerating the charge against them. I, therefore, hold that the case against Rauf and Rafique is not free from doubt, I acquit him. They be released forthwith, if their detention is not wanted in any other case."
16. In short the dying man (Muqaddar Shah) if at all he was in an immediate apprehension of death at the time of making this statement (Exh. P. V.) was not found immune from the unfortunate common habit, now judicially recognized, that people do add innocent persons along with the guilty to satisfy their sense of revenge with a view to put the other side to the utmost grief as observed in Tawab Khan's case Not only the implication of the two acquitted accused was held1 doubtful, but he was also attributed another human weakness of suppressing his own aggressive conduct by wilfully avoiding any reference to the injuries suffered by the two appellants during this violent skirmish between them.
Some other salient features of the alleged dying declaration like the absence of any medical certificate about the fitness of Muqaddar Shah to make a coherent statement in the serious condition he was brought to the police station, its attestation by any other respectable witness in view of the thumb-impression affixed thereunder although it was a statement of admittedly a literate person, appear to have escaped notice of the learned trial Judge which had certainly weakened its evidentiary value.
17. The occurrence having taken place at rotiwela resulting in two serious wounds in his abdomen and another in the chest with profuse bleeding and omentum protruding out, followed by a jolting journey in the cot covering a distance of three miles, must have rendered him unconscious by the time (1-15 p.m.) he reached the police station. Any responsible police officer would have sent for the Medical Officer from the nearby hospital to attend on the injured person for certifying his fitness before and during the recording of his statement but A. S. I. Muhammad Sadiq (P. W. 10) had failed in this solemn duty before embarking upon the registration of this case at his instance.
It will not be out of place to resproduce here the statements of Dr. Abdul Majid as P. W. 1 at the trial for the assessm ent of the condition of the injured person at the time of his arrival in the hospital which reads as under :- "The patient had reached the hospital on 94-68 at 1-30 p.m. When the patient was brought to the hospital, his condition was such that his intestines were coming out of the abdominal wound and he was in shock. He needed my immediate attention. I directly took him to the operation theatre where I operated upon him and provided him with all medical aid which I could Muqaddar Shah died at about 3 a.m. On 10-1-68. Uptil his death he was not fit to make a statement from the time of operation. The shock was due to the loss of blood. It is possible that the deceased might have received shock immediately on receiving injuries or afterwards."
The concessions made by the doctor would go a long way to confirm my conclusions about his mental condition, There was yet another inherent circumstance to put one on guard about the genuineness of this document and that is time (1-15 p.m.) of recording this statement as given in Exh. P. V. And the arrival of the patient in the hospital at 1-30 p.m. As entered in Medico Legal Certificate (Exh. P. E.).
How could the A. S. I. Complete all the formalities within ten minutes as would appear from the evidence of Head Constable Muhammad Asiam P. W. 15) who was entrusted with the relevant papers at 1-25 p.m. For the investigation of this case.
(1) The drawing out of this statement Exh. P. V. ;
(2) his note thereunder (Karwai police) including the details of his injuries ; and
(3) a separate injury sheet (Exh. P. W.) for despatching it under the escort of Foot Constable Ghulam Hussain P. W. To the hospital situate at a distance of two furlongs from the police station.
All these tasks were humanly impossible to be accomplished within so short a time.
It was also physically impossible to cover a distance of two furlongs between the police station and the hospital with an injured person on a cot within five minutes.
I have given this distance from the statement of Head Constable Muhammad Asians (P. W. 15) who had further deposed that he reached the hospital at 2 p.m. He had submitted a query Exh. P. Z.
Before the doctor soliciting his opinion about the fitness of the injured person who replied in negative vile Exh. P. Z./1 but no time is entered on this query which is supposed to be the first thing he might have undertaken after reaching the hospital.
The doctor had taken this injured person "directly" to the operation theatre as mentioned above adding that it was possible that he (the injured person) might have been in the same condition for about an hour or so in which I found him at the time of the operation. If this operation was undertaken immediately on his arrival in the hospital then it should be at about 1-35 or 1-45 p.m.
And one hour before that would mean 12-35 p.m. Or 12-45 p.m. And belies the assertion that the injured person was possessed of his full senses at 1-15 p.m. When Exh. P. V. (the dying declaration) is shown to have been recorded.
It, however, does not appeal to reason that the persons accompanying Muqaddar Shah would have taken him to the police station instead of the hospital as the walfare of the injured person must have been upper most in their mind especially when both these places were situate quite close to each other in the same town. The doctor after the necessary first aid would have himself informed the police about it so that his statement could also be recorded if he found him fit enough for the same leaving no room for any doubt about it. In fact the medico legal certificate Exh. P. E. Shows that he was brought to the hospital by his friend Zaheer Shah and not through police.
If at all he was brought to the police station and his statement was recorded by the A. S. I.
(Moharrir) there being no injury on the right hand of Muqaddar Shah according to the medical evidence he should have obtained his signatures under it rather than his thumb-impression and to remove any doubts about its genuineness he should have obtained attestation from any of the five persons who had brought him to the police station including Najab Khan (P. W. 11) and Muhammad Ashraf Lambardar (not produced). It was in the statement of Mubarik Shah (P. W. 9) that Muqaddar Shah was a literate person who was maintaining the accounts of his tobacco business.
18. There was another startling disclosure made by Najab Khan P. W. Before the Committing Magistrate that after their arrival in the police station he went to call the Thanedar and as he came out Shamroz Khan P. W. Was present with them at that time and that he (Najab Khan) had told the Thanedar the same story in the way as he was told by Shamroz Khan P. W. In his field and thereafter he recorded the statement of Muqaddar Shah. He, however, disowned these portions of his statement before the Committing Magistrate when confronted with at the trial.
He had also deposed before the Committing Magistrate that the persons sitting near the deceased at the spot including Wards Khan P. W. Were having a talk with him when he reached there on the invitation of Shamroz P. W. Which would confirm that he could even have been tutored to make such a statement whenever called upon to do so at the police station or the hospital. These are the additional features which would diminish the sanctity of the dying declaration relied upon by the learned trial Judge in convicting the two appellants.
19. The rule of prudence magnified in the above quoted judgment Tawaib Khan v. State called for some material corroboration before it could be acted upon for the conviction of these appellants in view of the numerous infirmities pointed out above and the learned Judge seemed to have sought it from the testimony of Shamroz Khan and Warris Khan, the alleged eye-witnesses which unfortunately suffered from the same infirmities as they had also been condemned by the learned trial Judge for toeing the same line as adopted in the alleged dying declaration, namely, the doubtful involvement of two acquitted accused and the suppression of the aggressive role of Muqaddar Shah (deceased).
The law, however, does not permit of corroboration of tainted evidence with another set of tainted evidence as laid down in Muhammad Hussain Qureshi v. Crown and Mst. Kaisari v. Sarkar .
20. A Independent evidence from the vicinity of the crime was, however, available in this case but the prosecution had withheld it. According to the admission made by Warris Khan P. W. That Sher (not produced) had a but close to the place of occurrence who had come out on hearing the alarm and witnessed the occurrence. It was he who had in fact supplied the cot for carrying the injured person to the hospital. There were some other persons who were summoned by Shamroz Khan P. W. Soon after the occurrence and told the names of the assailants but they had not been2 3 produced. It was thus a clear case of withholding better evidence of natural witnesses who lived on both sides of the place where Muqaddar Shah (deceased) was allegedly intercepted and attacked in broad day light. The exclusion of such evidence has been considered on valid ground to throw out such a case as done in Sikandar's case and Bashir Ahmad and others v. The State .
It may be pointed out here that Warris Khan and Shamroz Khan P. Ws. Had hailed from Nartopa situate at a distance of three miles from the place of occurrence. They could, therefore, not claim to be the natural witnesses either and with so many discrepancies in their evidence it had even otherwise failed to inspire confidence.
21. There being no evidence from the prosecution side worthy of any credence whatsoever, it had to be rejected in case of the two appellants as well. To carry conviction on capital charge ocular evidence must come from unimpeachable source or must be supported by some strong circumstances as laid in Bagh Ali's case .
In the absence of any such evidence the version put forth by the appellants had to be accepted as whole unless palpably untrue. In the present case the learned Judge had only rejected the motive attributed to Muqaddar Shah (deceased) for assaulting the appellants in their fields for which he had embarked upon imagination and conjectures only. The presence of a larg number of injuries caused with sharp pointed weapon on the fingers, hands and arms of the two appellants was by itself an eloquent testimony to the fact that they had been warding off the blows aimed on them, which confirmed the aggressive conduct of the deceased and entitled the two appellants to the right of private defence and in the admitted circumstances of the case they could not be accused of exceeding this statutory right.
22. In view of the above discussion I accept this appeal, set aside the convictions and sentences of both the appellants acquitting them of all the charges levelled against them. They shall he released from custody forthwith if not required in any other case. PLD 1970 SC 13 PLD 1954 Lah. 127 1973 P Cr. L J 156 PLD 1963 SC 17 1974 P Cr. L J 385 PLD 1973 SC 321