' JAVID IQBAL, J.-Faqir Muhammad son of Muhammad Din, aged 20 years, has been convicted under section 302, P. P. C. For the murder of Jamal Din and was sentenced to death plus fine of Rs.
2,000 or in default to undergo one year's R. I. And if the fine was realized, half of the same was to be paid to the heirs of the deceased as compensation vide judgment dated the 28th of March, 1974, of the Additional Sessions Judge, Kasur. Three co-accused, namely, Ashraf, cousin of Faqir Muhammad, Noor Muhammad and Muhammad Arif, brothers inter se and maternal cousins of Ashraf were acquitted. The appeal of the convict as well as reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
2. The occurrence took place on the 18th of June, 1972, after maghrib prayer time (about 7-00 p.m,) in village Thaysiharan, at a distance of 9 miles from Police Station Luliani, District Lahore. Statement Exh. P. E. Was made by Jalal Din deceased while he was still alive at Railway Station Rao Khan Wala where he was carried in order to be taken to the hospital in the train. It was recorded at 5-45 a. m.
On the 19th of June, 1972, (about 10 hours after the occurrence), by Wazir Ali S. I. (P. W. 10) of Police Post Raja Jang who was on patrol duty there. On the basis of the aforesaid statement formal F. I. R.
Exh. P. E. 1 was registered at Police Station Luliani at 7-45 a.m on the 19th of June, 1972, by Hamid Ali Khan A. S. I. (P. W. 5). The deceased is stated to have died in the hospital at 9-00 a.m. On the 19th of June, 1972. His statement, therefore, recorded by the police was considered as dying declaration.
3. The motive for crime as set up by the prosecution is that Chanan Din father of Ashraf acquitted co-accused was murdered about three years prior to the occurrence and in that murder case Ismail and Nawaz two sons of the deceased were implicated and their trial was pending. It is stated that at the time of occurrence Ismail was on bail whereas Nawaz was in jail. According to the prosecution the crime was committed by the appellant in order to avenge the death of Channan
4. The prosecution has produced only one eye-witness of the occurrence, namely, Muhammad Hussain (P. W. 9) relative of the deceased. Muhammad Sadiq was mentioned as an eye-witness in the statement of the deceased but he was given up as having been won over.
5. The appellant as well as the acquitted co-accused were arrested by Wazir Ali, S. I. (P. W. 10) on the 20th of June, 1972. Blood-stained barchi P. 1 was recovered at the instance of the appellant and was taken into possession vide memo Exh. P. D., dated the 20th of June, 1972. The attesting witnesses are Asghar Ali (given up as having been won over), Inayat Ali (also given up as having been won over) and Wazir Ali (P. W. 10). No other recovery was made from any of the acquitted co- accused. According to the report of the Serologist Exh. P. M. Barchi P. 1 was found to be stained with human blood.
6. The appellant in his statement for the trial Court totally denied having participated in the occurrence. He disowned recovery of barchi P. 1 and stated that he had been falsely implicated due to enmity.
7. Dr. Zafar Iqbal (P. W. 1) medically examined the deceased while he was still alive at 7-45 a.m. On the 19th of June, 1972, and found on his person the following injuries: (1) cut wound 2' x going into the abdominal cavity on the back of lumber region; (2) intestines were coming out on the left side of abdomen from a wound measuring 2k" x 1 (3) cut wound on the left hand; (4) cut scratch on the left fore-arm; (5) cut scratch on palm of of right hand; (6) abrasion on the right clavicle; (7) cut wound on the left arm. Injuries Nos. (1) and (2) were dangerous to life and the rest were simple.
Injury No. (6) was caused with blunt weapon and the rest with sharp-edged weapon within 24 hours. Necessary treatment was given but the patient expired at 9-00 a.m. On the same day, on the same day at 4-30 p.m, the same Medical Officer conducted post-mortem examination and noted on his person the same injuries except that injuries Nos. (1) and (2) were described as one injury as it was the result of a single blow. It was stitched. In his opinion the deceased died as a result of severe shock and haemorrhage resulting from injury to the abdominal organs which was sufficient to cause death in the ordinary course of nature. He stated before the trial Court that the injured/deceased could not remain conscious after receiving the abdominal injury beyond 2/3 hours keeping in view his age, constitution and the nature of the injury.
8. In the F. I. R. Or the so-called dying statement of the deceased, the occurrence is reported to have taken place in the following manner: On the day of occurrence after Maghrib prayers the deceased came out of his house and saw the appellant as well as the acquitted co-accused sitting in wait for him. As soon as they saw the deceased, Ashraf and Noor Muhammad acquitted co-accused raised a lalkara that he should not be spared. Thereafter, they started altercating with him. The deceased raised an alarm and also confronted them. But Muhammad Ashraf acquitted co-accused held him in a japha and the appellant gave him a barchi blow which he stopped with his hand and as a result his hand was injured. The appellant gave another barchi blow to the deceased in the abdomen region. Ashraf and Noor Muhammad acquitted co-accused went on raising lalkaras to the effect that the deceased should not be spared. The deceased fell down.
While he was in the fallen condition, the appellant gave him another barchi blow in the lumber region. In the meantime, Muhammad Hussain (P. W. 9) Muhammad Ashiq (given up as having been won over) arrived at the scene of crime and witnessed the same. The appellant and the acquitted co-accused had conspired to attack the deceased. It has already been pointed out that this statement was made by the deceased about 10 hours after the occurrence, although according to the statement of the Medical Officer, he could have remained conscious only for 2/3 hours after having received aforementioned injuries. According to the prosecution the deceased expired about 4 hours after making this statement. However, the trial Court has rightly not relied upon the dying statement of the deceased for the reasons stated in para. 9 of the judgment at pages 49 and 50 of the paper book.
9. We have heard learned counsel for both the sides and carefully perused the record. The deceased had received serious injuries in the abdomen and had bled profusely. The injuries were received at about 7-00 p.m. Thereafter the deceased was carried on a cot to the railway station in order to be taken in the train to the hospital. It is the case of the prosecution that the complainant side had missed the train and consequently the deceased in an injured condition remained lying on the cot at the railway station for about 2/3 hours until his statement was recorded at 5-45 a.m.
By the investigating officer. In the opinion of the doctor it was not proboble that he could have remained conscious for more than 2/3 hours. For this among other reasons, the learned trial Judge did not rely on the dying statement of the deceased. However, he based the conviction and sentence of the appellant on the testimony of Muhammad Hussain (P. W. 9), the sole eye-witness of the occurrence, corroborated by the recovery evidence, the medical evidence and the motive It may be pointed out that the two public witnesses of the recovery of blood-stained barchi P. 1, namely, Inayat Ali and Asghar Ali were not produced. The recovery, therefore, is not attested by any other witness except Wazir Ali S. I. (P. W. 10) who is also stated to have recorded the dying statement of the deceased which we consider was B not reliable. It may be further pointed out that Muhammad Hussain P. W. Had stated that the statement of the deceased was recorded at the hospital at Kasur but it was his statement which was recorded at the railway station Rao Khan Wala, He had stated before the Committing Magistrate that they reached the Railway Station Rao Khan Wala in one hour at about 10/11-00 a.m. Muhammad Sadiq (P. W. 8), son of the deceased who identified the dead body of the deceased at the mortuary stated in the cross-examination that when he arrived on the spot, his father was lying on a cot in an injured condition in his house and Muhammad Hussain P. W. As well as Muhammad Ashiq (not produced) were sitting near him. His father was narrating the occurrence to them as to how it took place. After he had told the occurrence to Muhammad Hussain P. W. And Muhammad Ashiq as well as him they took the deceased to Roakhanwala Railway Station. They reached the railway station at about 3-00 a.m.
After covering a distance of 2 miles in about seven hours. He had stated before the Committing Magistrate that he brought his father to the hospital in an unconscious state on a cot. He had further stated before the Committing Magistrate that thumb-impressions of his father were obtained at three places at the hospital and that the deceased had expired half an hour after making the statement in the hospital. This indicates that Wazir Ali S. I., P. W. Is not a reliable witness.
If he could claim to have recorded the statement of the deceased which purported to be a dying declaration and which had been rejected, it would not be safe to rely on Wazir Ali S. I. P. W. As sole attesting witness of recovery of barchi P. 1 from the appellant. The recovery evidence in this case, therefore, is not reliable. If that is the case, we are left with no other evidence against the appellant except the ocular testimony of the sole eye-witness, namely, Muhammad Hussain P. W. Who is not only closely related to the deceased but an interested and hostile witness. Anyway, his statement is uncoroborrated and it would not be safe to rely on it either. On a careful perusal of the record, we are of the cousidered opinion that the prosecution has not succeeded in establishing its case against the appellant beyond reasonable doubt. In the circumstances, the appellant should have been given the benefit of doubt which we hereby given to him. His conviction as well as sentence are set aside and he is acquitted. This appeal is accepted. The appellant shall be released from jail forthwith if not wanted in any other case.
10. Reference for the confirmation of death sentence awarded to him is rejected.