' AGHA ALI HYDER, J.-The appellant was tried, along with his father, Paryal Shah, for an offence under section 302, P. P. C. The latter has been acquitted, while the appellant was convicted and sentenced to undergo imprisonment for life. He had appealed through the jail authorities, and was called for the hearing, but, in the meantime, power had been feed by Mr. Mohammad Hayat Junejo, who argued the matter.
2. The prosecution story, in brief, is that, on the 31st of October 1971, a little after the sunrise, All Muhammad was ploughing his land. The appellant bad turned up with a hatchet in hand, and had struck at the back of All Muhammad. Imam Bukhsh, the uncle of Ali Muhammad, and some other persons, including Abdul Ghani, and Sadiq had come to his rescue, and had taken out the hatchet, which had stuck in the back of Ali Muhammad. The motive for the attack was that, a week, or, so before the incident, Ali Muhammad, while at a game of cards with the appellant, had given the latter a beating, and he (the appellant) wanted to avenge the same.
3. Imam Bukhsh had proceeded to Pabjo Out Post, which was two and a half miles away, and lodged the First Information Report, which was recorded by A. S. I. Qamardin, in charge of the Out Post at about 11-25 a m. A copy of the Roznamcha' was sent to Daulatpur Police Station, and the A.
S. I. Had proceeded with Imam Bukhsh to the "Wardat. He secured the blood-stained earth, and some articles from the "Wardat", and prepared a "Mashirnama". Thereafter, enquiries were made from P. Ws. Sadiq and Abdul Ghani. As All Muhammad had been taken to the Nawab Shah Police Station, the A. S. I. Proceeded there, and also made enquiries from some witnesses there. Before his arrival, A. S. I. Raja], Ali of Town Police Station, on receipt of a letter from the Medical Officer, Nawab Shah Hospital, had gone there and arranged the recording of the dying declaration of Ali Muhammad through Mr. Abdur Razzaq, Head Munshi and Third Class Magistrate, Nawab Shah Ali.
Muhammad succumbed to the injuries on the same day at the Hospital. A. S. I. Rajab Ali had prepared the inquest report, and handed over the dead body to the Medical Officer for the post- mortem examination. The appellant came to be arrested, according to one version, on 1-11-1971. He was putting on a blood-stained kin-cloth, which came to be secured. On 2-11-1971, he made a judicial confession before the Sub-Divisional Magistrate, Moro. The other appellant was arrested on 4-11-1971, and he also had produced a pistol, but it is not necessary to go into further details. The blood-stained articles were sent to the Chemical Examiner, and, after due investigation, the case came to bechallaned in Court.
4. The appellant in his statement at the Court of Enquiry denied the various allegations made against him, and added that the deceased had other enemies to reckon with.
5. The autopsy was performed by Dr. Zahid Hussain, who found the following injuries on the person of the deceased
(1) Incised wound 4" x 12" x cavity deep cutting the seventh rib through and through over the left side of the chest in between exterior axillary line and posterior axillary line 4" N below the exile.
(2) Incised wound 6' x 4' x cavity deep just below and back of injury No. 1, cutting the eighth and ninth ribs alongwith cutting the left lower lobe of the lung through and through on the back of the left side chest.
' The Medical Officer was of the opinion that the injuries bad been caused by a sharp-cutting weapon, such as a hatchet, and that death had occurred as a result of shock and haemorrhage because of these two injuries, which were individually and collectively sufficient, in the ordinary course of nature, to cause death.
6. The pieces of evidence against the appellant are the ocular testimony, as furnished by Imam Bukhsh, Abdul Ghani and Sadiq, the dying declaration from Ali Muhammad, the judicial confession, and the recovery of a loincloth after his arrest, which, as found by the Chemical Examiner, was stained with human blood.
7. Imam Bukhsh is the uncle of the deceased, and it was he who had loedged the Report. It mentions one hatchet blow and the sticking of the hatchet in the back of Ali Muhammad. It makes out the presence of only Abdul Omni, and the two of them had given a 'Hakal'. Then, it mentions that, in the meantime, Khan Muhammad, Sadiq and other villagers had turned up from the village, and had seen the appellant running away. Further, that, at the time of the incident, Paryal Shah, the father of the appellant, was standing at a mosque, and there is no mention of any pistol with him. It also mentions that Ali Muhammad was lying unconscious at the "Wardat", when he had left for lodging the Repoit. However, he testified at the trial that Paryal Shah had instigated the appellant, and that Sadiq and Saheb had witnessed the happenings. Imam Bukhsh states that he had come to the land with breakfast for Ali Muhammad. This is also the version as given by Abdul Ghani, who also makes out the presence of Sadiq as a witness of the incident, This stand has been adopted by Sadiq, and all these witnesses implicate Paryal Shah as the instigator of the offence, and having a pistol in his hand. All these witnesses also mention that Ali Muhammad had named the appellant as the perpetrator of the crime, which is in departure from the version In the First Information Report, which mentions that Ali Muhammad had become unconscious. Imam Bukhsh is related to the deceased in the closest degree. Even Abdul Ghani would be related, as he is the step-brother of Saheb. Demonstrably they have over-stepped the mark, and their version has gone on improving at different stages. It is also significant to mention that there is no mention of their names at all in the dying declaration. It is also surprising that, though the appellant was a co-villager of theirs, and the hatchet had remained-sticking in the back of Ali Muhammad, none of these three persons, or, for the matter of that, other people, who had turned up, made any attempt to catch hold of the appellant. What is worse is, that all these witnesses mention only one injury, which is irreconcilable with the medical evidence, as referred to earlier. These witnesses were also disbelieved by the trial Court so far as Paryal Shah was concerned. I am of the opinion that they are not witnesses of truth, and their evidence has to be totally discarded.
8. The judicial confession was also not relied upon by the trial Court and for good reasons. The letter addressed to the A. S. I. To She SubDivision al Magistrate clearly mentions that the arrest had been effected on the evening of the 31st of October, 1971, and the confession was recorded on the 2nd of November, 1971. So, the delay is more than a day. The assertion of the A. S. I., that the appellant was actually arrested on 1.11-1971, can hardly be trusted, when it is opposed to the letter to the Magistrate, which is on the record, and which expressly mentions the arrest a day earlier.
9. The Mashir of the recovery of the loin cloth also was not relied upon by the trial Judge.
Apparently, he appears to be an ubiquitous sort of a witness, who is at the beck and call of the Investigating Officer, and is sent for, from his village times and again. According to him also, the arrest was a day earlier on the 31st, and there are a number of contradictions, which materially affect his credibility.
10. The only other evidence is that of dying declaration, but even here, A. S. I. Rajab All states that three/four persons were present, when the dying declaration was recorded. It is true that this is not the version of H. C. Abdur Razzaq. The latter states that a doctor was present, and he had incorporated on the dying declaration that Ali Muhammad was conscious and fit to make a statement, but even he has not been named, or examined. There are some minor variations also in the statements of Head Munshi Abdur Razzaq and A. S. I. Rajab Ali, but that can be brushed aside.
However, there is no other corroboration to the dying declaration otherwise too. It mentions the motive, which has been taken up by Imam Bukbsb, but it is noteworthy that even the dying declaration mentions only one injury.
11. I am, therefore, of the opinion that it would not be safe to maintain the conviction. There is room fcr doubt, and the benefit thereof will accrue to the appellant. I will, therefore, set aside the conviction and sentence, and allow the appeal. The appellant I; in custody, and would be released forthwith, unless wanted in connection with some other case.
12. Before parting with the case, I might, as well, add that the sentence of imprisonment for life was illegal, as, up to April 1972, the proper sentence was transportation for life.
JAMALUDDIN H. AHMED, J.-1 agree.