' JAVID J.-Amjad and Faraand sons of Qasim, aged 35 and 29 years respectively and Abdul Hamid alias Hamidoo son of Rahim Bakhsh, aged 40 years, their maternal uncle have been convicted under section 302/149, P. P. C. And all of them sentenced to death for the murder of Mustafa alias Mastoo. They were also convicted under section 148, P. P. C. And sentenced to two years' R. I. Each.
The judgment against them has been passed by the Additional Sessions Judge, Multan on the 25th of September, 1973. Three of their co-accueed, namely, Qum; father of Amjad and Farzand, was acquitted, Islam Din died before the inquiry had commenced and Abdul Hakim died in the course of Inquity. Islam Din and Abdul Hakim were nephews of Qasim and cousins of Amjad and Farzand.
The appeal of the convicts as well as reference for the confirmation of death sentence awarded to them are being taken up and disposed of together by this judgment.
2. The occurrence took place at 7-30 p.m. On the 20th of April, 1972, in Gall Sunaroonwali at a distance of 2} furlongs from Police Station Old Kotwall, Multan. Muhammad Hand (P. W. 7), a maternal cousin (Khalasad) of the deceased made statement Exh. P. A. At 8.40 p.m. On the same day in Chowk Peepalwsla, near the place of occurrence while on way to the police station and it was recorded by Rasul Bakhsh A. S. I. (P. W. 14) who happened to be present there. On the basis of this statement formal F. I. R. (Exh. P. A./1) was registered at 8-55 p.m. On the same day at Police Station Old Kotwall.
3. The motive for crime as set up by the prosecution Is that the accused and the complainant parties are inimical to one another and their enmity has a history. The deceased and one other had given knife injuries to Amjad appellant a few years prior to the occurrence and the deceased was convicted and sentenced to three years' R. I. He had come out after undeN going his sentence.
It is stated that the appellants and their co-accused had attacked the deceased in order to take revenge. However, this motive has been disbelieved by the trial Court in para. 14 of the judgment at page 70 of the paper book. The learned Additional Sessions Judge nevertheless finds that since the parties are inimical to one another, there may be some other motive for the crime.
4. Amjad appellant was arrested on the 24th of April, 1972, whereas Fara:end and Abdul Hamid appellants were arrested on the 22nd of April, 1972. The recoveries were made in this case from Abdul Hamid appellant of human blood-stained hatchet P. 3, from Farzand appellant revolver P. 1 and six live bullets and from Qasim acquitted co-accoused human bloodstained hatchet P.
4. However, these recoveries have been rightly disbelieved by the trial Court for the reasons stated in para. 26 of the judgment at pages 73/74 of the paper book.
5. The prosecution has produced four eye-witnesses of the occurrence, namely, Muhammad Hanif (P. W. 7), who according to the Investigating Officer was found to be real khalazad i,e, maternal cousin of the deceased Shaukat Ali (P. W. 9), although not related to the deceased but a partisan a Abdur Rahim (P. W. 11) also a partisan and a sworn enemy of the appellant and Nawab Ali (P. W. Lu), who was not connected with either of the parties. Nawab All P. W. Was not mentioned as an eye- witness in the F. I. R. He was added subsequently and, therefore, the learned Additional Sessions Judge has not relied upon his testimony (refer to para. 18 of the judgment at page 71 of the paper book). Two other persons who were mentioned in the F. I. R. As eye-witnesses, namely, Muhammad Asghar alias Achhoo and Islam Din alias Pappu were not produced and Shaukat Ali as well as Mohammad Shafi shopkeepers, whose names appear in the F. I. R. Were not even cited as witnesses. It may be pointed out at this stage that Muhammad Hanif P. W. Is closely related to the deceased and is a partisan. Shaukat All P. W. Although not related to the deceased is stated to be nephew of Nawab All P. W. a ho has been disbelieved by the trial Court. Anyway, from the testimony of Shaukat All P. W. Is appeals that he is not a reliable witness. Abdur Rahim P. W. Is admittedly a bad character and a partisan. His nephew stood surety for the deceased is a criminal matter. He is also hostile towards the appellant as mentioned at page 49 as well as para. 19 of the judgment at page 72 of the paper book.
6, Dr. Altaf Hussain Gardezi (P. W. 1) conducted post-mortem examination on the dead body of the deceased at 11-30 a.m. On the 21st of April, 1972, and found on his person 15 injuries which are incised wounds, stab wounds as well as fire-arm wounds. From the description of the injuries it appears that they had been probably caused by three kinds of weapons of offence, namely, 12 bore pistol or gun, hatchet and knife or khanjar. In the opinion of the medical officer the cause of death was shock and haemorrhange as a result of injury to the right lung, the cutting of the left wrist and fracture of right thigh caused by sharp-edged weapon and fire-arm. All the injuries were sufficient to cause Beath in the ordinary course of nature. One of the injuries had been caused by blunt weapon. There was a contusion on the back of right hand.
7. The appellants in their statements before the trial Court totally denied having participated in the occurrence. They stated that they had been falsely implicated due to enmity.
8. In the F. I. R. The occurrence is reported to have taken place in the following manner r Muhammad Hanif and Shaukat Ali P. Ws. Were standing together near shop of Shaukat All milk- seller (not produced) and talkies to each other. At that time, nearby, the deceased, Muhammad
9. We have heard learned counsel for both the sides and have carefully perused the record. The conviction of the appellants is based on dying declaration of the deceased (Bah. P. J.) which was recorded by Raoul Bakhsh A. S. I. (P. W. 14) at 9-45 p.m. On the same day in hospital while the deceased was still alive. The aforesaid statement is very brief and it runs as follows t- {{urdu text}} As is apparent from this statement which was recorded in the presence of the medical officer the patient became unconscious when he had made the above-cited statement. Thereafter, be never regained consciousness until he died. It may be pointed out that this dying declaration has been relied upon by the trial Court which has also believed the testimony of the three eye-witnesses, namely, Mohammad Hanif, Shaukat All and Abdur Rahim. The learned Additional Sessions Judge is of the opinion that the dying declaration of the deceased was corroborated by the ocular testimony. It may be pointed out further that the recoveries in this case have been rightly disbelieved and motive is believed to the extent that the parties are extremely inimical to each other. The first argument of learned counsel is that the dying declaration was incomplete and, therefore, inadmissible in evidence. In support of this argument reliance is placed on Muhammad Abdullak v. Muhammad Safdar Khan and another (1) and Cyril Waugh v. The Klnj (2). In our view a dying declaration would be incomplete if it failed to name the assailant or the person making the declaration suddently ceased to do so leaving it incomplete in the sense that it could not be ascertained as to whom he described as his assailant in the narrative o when it was not certain as to what he may have added to complete his statement. In the present case it is evident that before he fell unconscious, A the deceased managed to give the names of his assailants as well as description of the weapons with which they caused injuries to him. In our view, therefore, the dying declaration in the present case, strictly speaking, is not incomplete so as to be inadmissible in evidence. The next argument of learned counsel is that the dying declaration was inherently false.
Firstly, {{FOOT NOTE}}
(1) 1973 SCMR 26 (2) 1950 A C 203 {{FOOT NOTE}} because it mentioned Qasim as an assailant who was found to be falsely implicated in this case by the trial Court for the reasons stated in para. 16 of the judgment at page 71 of the paper book.
Secondly, because the deceased mentioned Islam Din Ninaykay as one of his assailants. This person was in existence as is clear from the testimony of Ghulam Muhammad Khan D. S. P. (P. W.
13) at page 51 of the paper book (refer to last 4/5 lines). But instead of him Islam Din son of Nadir was implicated as co-accused who died anyway before the inquiry commenced in this case Thirdly, it is submitted that the dying declaration was unreliable becaus if Islam Din Ninaykay was not the accused person, according to the s called eye-witnesses, then on what basis Islam Din son of Nadir wa implicated as co-accused except for enmity. Fourthly, it is submitted tba the dying declaration was in conflict with the medical evidence. Accordin to the medical evidence there were some incised wounds found on the d body of the deceased which were clearly stab or punctured wounds probabl caused by a knife or a dagger. These wounds could have not been cans by a hatchet and yet in the dying declaration it was not stated as to whethe or not any of the assailants of the deceased was armed with knife or dagger. Fifthly, it is submitted that the dying declaration did not mentio the names of any of the eye-witnesses who might have witnessed th occurrence.
Sixthly, it is argued that according to Miriam Muhamma Khan D. S. P. (P. W. 13) at page 52 of the paper book, one Muhamma Yasin was found injured and was medically examined as isell as his stet ment was recorded. (This person has not been produced by the prosecution) It is further stated by this witness that the piece where the last part of th incident took place was situated near the the house of one Muhamma Yaqub and that this witness found two bullets embedded in the door o his house. These bullets were taken into possession and yet this fact wa not mentioned in the first inspection report of Rasul Bakhsh A. S I. P. W It is submitted that there is neither any mention of Muhammad Yasi injured in the dying declaration nor in the statements of the eye-witnesses Similarly the recovery of two bullets embedded in the door of the hous of Muhammad Yaqub found no mention in the dying declaration or th statements of the eye-witnesses. Seventhly, it is argued that since the dyin declaration threw no light on these facts and it did not give full accoun of the occurrence, it was incomplete in this respect and therefore, it woul not be safe to rely on it. Lastly it is submitted that according to th statement of Ghulam Muhammad Khan D, S. P. (P. W. 13) the decrease was a badmash and since the accused and the complainant parties wer inimical to each other the possibility could not be excluded of his namin innocent persons along with the guilty in his dying declaration. It is argue that it was also possible that the deceased was told by the partisan ey witnesses beforehand that they were going to implicate the appellant and the co- accused and that, therefore, be should state their names as hi assailants in case his dying declaration was recorded. In that view of the matter it is submitted that the dying declaration which was by itsel not worthy of any credit, was falsified by the medical evidence and coul not be considered as corroborating the version of the eye-witnesses, shoal not be accepted as basis for conviction and sentence of the appellant particularly when no independent corroboration qua each appellant or c accused and the part played by each of them was forthcoming in the preset case. It is submitted that it was understandable that Amjad and Farzan appellants had been implicated due to previous enmity but even the eye witnesses did not ascribe any specific role to Abdul Hameed appellant exce for levelling a general allegation. It is submitted by learned counsel when a number of persons were involved out of which probably some were nnocent and some guilty and it could not be determined with certainty as o which of them were guilty and which had been roped in falsely, then 11 should be acquitted. Reliance was placed on Tawaib Khan and another The State (1) and Sansandi and others v. The Crown (2). The arguments f learned counsel have force. The enmity between the parties is clearly stablished. The appellants and co-accused are closely interrelated and along to the opposite faction. The eye-witnesses in the present case are nterested, hostile and partisan. Muhammad Hanif P. W. Is maternal cousin f the deceased. It appears from the testimony of Shaukat Ali P. W. That ithough he was not related to the deceased he was closely related to awab All P. W. And was introduced as eye-witness subsequently and was of relied upon. He also appears to be a partisan. Similarly Abdr Rahim W. Is a bad character, partisan and sworn enemy of the accused party. He was one of the assailants of Qasim acquitted co-accused and father of mjad and Farzand appellants. His nephew stood surety in a criminal ase for the deceased. The prosecution has not produced any disinterested -ye-witnesses of the occurrence although such persons had been stated to e pres tit at the time of occurrence in the P.
I. R. The recoveries in this ase have been rightly disbelieved by the trial Court as they do not connect he appellants with the commission of crime. The dying declaration as well as eye- witnesses clearly implicate Qasim co-accused in the commission f crime. Yet it was found by the trial Court that his right hand was mpletely incapacitated and he should not have wielded a hatchet. It was, therefore, held that he was falsely implicated in the dying declaration as well as in the statements of the eye-witnesses. The dying declaration names Islam Din Ninaykay as one of the assailants whereas eye-witnesses implicate Islam Din son of Nadir therefore which of the two Islam Dins was Involved could not be ascertained. The medical evidence clearly indicates that some of the injuries found on the dead body of the deceased were stab wounds which could probably have been caused by a knife or a dagger and not by a hatchet. But, it is neither clear from the dying declaration nor the testimony of the eye-w tnesses as to how these injuries were caused to the deceased and by whom. Further the prosecution version is absolutely silent about the injury caused to Muhammad Yasin during the course of occurrence. Muhammad Yasin was not produced as a witness in this case. It was, therefore, not clear as to how and on which side was he injured in this case. Similarly, no explanation is forthcoming from the side of the prosecution as to why two bullets were found embedded in the door of the house of Muhammad Yaqub. The deceased was a badmash and, therefore, the possibility could not be ruled out that at the instigation of his partisans he might have added the names of innocent persons with the guilty in his dying declaration. In that view of the matter it would not be safe to rely on the dying declaration which was not completely supported by the medical evidence. Similarly, the tainted and uncorroborated ocular testimony in this case was unreliable, as it was of interested and partisan witnesses who had motive to falsely implicate as many members of the rival family as could be possible. It is evident from the record that the deceased in his dying declaration as well as the eye- witnesses in their statements had falsely implicated Qasim co-accused as one of the assailants and Shaukat All P. W. Had stated that he held hatchet in his right hand whereas the trial Court found that his right hand was completely incapacitated and that {{FOOT NOTE}}
(1) PLD 1970 SC 17 (2) PLD 1955 Lah. 641 {{FOOT NOTE}} therefore, he could not wield a hatchet. Consequently, the finding of the trial Court in respect of him was that he hadbeen falsely implicated, In the light of the above discussion, we are of the considered opinion that this is a case in which there is a likelihood of some innocent persons having been falsely involved along with the guilty ones, and it was not possible to determine with certainty as to which of them were in fact guilty for having participated in the occurrence. In the circumstances, therefore, we are left with no other alternative except to give the benefit of doubt to the B appellants relying on Tawaib Khan and another v. The State and Sarnandi and others v. The Crown. The result is that the conviction as well as sentence of the appellants are hereby set aside and they are acquitted. Their appeal is accepted. They shall be released from jail forthwith if not wanted in any other cue.
10. The reference for confirmation of death sentence awarded to the appellants is hereby rejected.