' Z. A. CHANNA , J.-This is an appeal by the Provincial Government under section 417, Cr. P. C. Calling in question the judgment delivered by a learned Ex-Officio Additional Sessions Judge, Karachi, on 15-10-1975, acquitting the respondent of an offence under section 302, P.P.C., for allegedly committing the murder of one Abdul Rehman son of Fazal Ahmad. A criminal revision application under section 435 read with section 439. Cr. P. C. Has also been filed by one Nasir Khan, the brother of deceased Abdul Rehman, challenging the impugned judgment and the acquittal of the respondent. This judgment will dispose of both the acquittal appeal of the Government and the said criminal revision application.
2. The incident, which has given rise to the present appeal and the revision application occurred on 15-4-1972, near Zareen Hotel, old Golimar, Karachi. The prosecution case is that on that day, at about 6-30 a.m. P.W. Qasim, a nephew of the deceased, was taking water from the community tap, a short distance away from his house, when he heard shouts from the side of Zareen Hotel, whereupon he rushed towards the place from where the shouts were coming and is alleged to have seen the respondent stabbing the deceased with a knife. Qasim claims to have tried to intervene in order to rescue his uncle but the appellant tried to attack him also, and hence Qasim ran away to his house. He returned back to the scene of offence after a lapse of about 5 minutes and found first informant Mumtaz, who is a cousin of deceased, and P.W. Gul Bahadur, a nephew of the deceased, present at the site. It is alleged that the deceased was conscious at that time and informed the witnesses that the respondent had caused injuries to him without any reason.
Thereafter, P.Ws. Qasim and Mumtaz took the deceased in a taxi to the Civil Hospital while Gul Bahadur is said to have gone to the Police Station for lodging a report. This report is not forthcoming and it is not known when he actually lodged the report, and what became of it.
3. At about 6-58 a.m., the same day, Head Constable Muhammad Yousuf of Golimar Police Station received intimation on phone from the Civil Hospital that a person named Abdul Rehman had been brought at the hospital in an injured and precarious condition and he was asked to send some Police Officer to investigate. This message was passed on to S.I. Naeem Bahadur who went to the Civil Hospital at about 10. p.m. Where he recorded the statement of Mumtaz, which was treated as the first information report and was recorded as such in the register of cognizable cases maintained under section 154, Cr. P.C. The said statement reads as follows :- "Statement according to section 154. Cr. P. C. From Mumtaz son of Fazlur Rahman r/o house behind (illegible) Hotel Central, Muslimabad, Old Golimar, Karachi. I live at the above address. Today 15-4- 1972 at about (Paper torn) when I was present in the house then Gul Bahar told me by coming into the house that just now little time passed when Abdul Rahman son of Syed Khan has injured to your cousin (Chachazad Bhai) Abdul Rahman son of Fazal Ahmed at Central Muslimabad, Old Golimar, opposite Zareen Hotel by stabbing with knife. I reached near Zareen Hotel alongwith Gul Bahar. There my (Chachazad Bhai) cousin Abdul Rahman was lying on earth in injured condition. I asked him the cause of quarrel. Then he told me that Abdul Rahman s/o Sair Khan who is of our village he has injured by stabbing with knife on my stomach, chest, neck, buttock and arm with the intention of killing me to death. Saying this only he became senseless. I and namely Gul Bahar and Qasim Khan brought him immediately to Civil Hospital. Several people were present at the spot.
Abdul Rahman will tell the real cause of the quarrel after coining into senses. My complaint on Abdul Rahman son of Sair Khan is injuring with knife to my (Chachazad Bhai) cousin Abdul Rahman son of Fazal Ahmad with the intention of killing to death. Heard statement which is correct. (Sd.)
Mumtaz."
4. After recording the above statement of P. W. Mumtaz, S.I. Naeem Bahadur inspected the scene of offence and prepared the memo of inspection. From the scene of offence the S.I. Collected fresh blood from the ground. He then examined P.Ws. Gul Bahadur and Qasim at the scene of offence.
On returning to the Civil Hospital, the S.
1. Learned that the deceased had succumbed to his injuries. Further investigation in the case was conducted by S.H.O. Altaf Ali, who verified the investigation made by S.I. Naeem Bahadur and also recorded the statements of Faridoon, Liaquat Ali and Taj Baloch. On 21-4-1972, the S.H.O. Arrested the respondent from Drigh Colony and after making some further formal enquiries in the case, he challaned the respondent on 3-5-1972.
5. The deceased was originally examined by Dr. H.M. Ramzan, Casualty Medical Officer, who has testified that he found a total number of 15 incised wounds on the person of the deceased.
According to him, all the injuries were fresh, were caused by a sharp-edged weapon like a knife and were dangerous to life. An autopsy was also conducted on the deceased by Dr. Muhammad Umar Khan, who found as many as 18 incised wounds on the deceased. The discrepancy between the wounds noticed by Dr. Ramzan and Dr. Muhammad Umar has not been explained by the prosecution. But it is possible that either Dr. Ramzan omitted to notice some of the injuries or that the additional injuries noticed by Dr. Muhammad Umar in the post-mortem were the result of the operation carried on the deceased in order to save his life. Dr. Muhammad Umar has opined that the cause of the death was haemorrhage and shock due to multiple stab wounds and that two of the external injuries individually and collectively were sufficient to cause death in ordinary course of nature.
6. The defence of the respondent is one of complete denial. He has, however, given the following explanation as to why he has been implicated in this case :- "Mumtaz is of my village. Turab Shah was Vakil-e-Nikah of the lady who was married to Mumtaz.
Mumtaz later killed his wife and injured his mother-in-law. Mumtaz was demanding that no one should bury his wife or appear as witness against him. I had however taken part in the burial ceremony of Mumtaz's wife. At this Mumtaz was angry with me. Mumtaz and deceased are cousins.
Mumtaz has falsely involved me. He was convicted for 14 years and he has now completed his sentence. Two others were also convicted for 14 years each."
7. The only two pieces of evidence which were produced by the prosecution against the appellant are, firstly, the ocular evidence of P.W. Qasim ; and secondly, the dying declaration of the deceased said to have been made in the presence of P.Ws. Mumtaz and Qasim. The learned trial Jndge took the view that the ocular testimony of P.W. Qasim did not inspire confidence, as in his opinion the conduct of the witness, who was a robustman of 24 years, in running away and not trying to rescue his uncle, was strange and unnatural. Further more, he took note of the fact that the witness neither summoned any help nor informed any one at his house of what he had seen. He also did not accept the version that the deceased had made a dying declaration because this version was not supported by P.W. Gul Bahadur and other witnesses.
8. We have carefully examined the evidence in the case and are of the opinion that the decision given by the learned Additional Sessions Judge is founded on a sound basis. So far as the claim of P.W. Qasim is concerned that he had actually witnessed the fatal assault by the respondent on the deceased, there are a number of circumstances which in our view cast serious doubts on this question. It is an admitted position that the place of incident is a crowded locality and that furthermore in its vicinity there is a Dera' where 15 to 20 persons were then putting up. It is strange that none of these persons were cited as witnesses. Even if we were to suppose that either they did not see the incident or at any rate were reluctant to come forward and involve themselves in an incident in which they were not concerned, if P.W. Qasim had actually witnessed the fatal assault on the deceased, he would be expected to have raised an out-cry and upon this many persons could easily have come to his rescue and the rescue of the deceased. The fact that he did not do so seems to suggest that his story is of doubtful veracity. Furthermore, the witness has admitted that after seeing the fatal assault on the deceased, he went to his house, where he told no one of the incident, but after a lapse of 5 minutes he went back to the scene of offence. This again would hardly be the natural conduct of a person who had seen a fatal assault being committed on his uncle. Since his house is stated to be near the scene of offence he could easily have summoned help from his house and tried to rescue the deceased. Another circumstance which makes us view the testimony of this witness with suspicion is that according to him, when he returned to the scene of offence, he found the respondent running away with the knife and also P.Ws. Mumtaz and Gul Bahadur at the scene of offence. If what he says is correct, these two witnesses must also have been in a position to see the respondent running away. However, neither of these witnesses speak either of the presence of the respondent or of seeing him running away. Another important reason for not relying on the testimony of this witness is that according to the statement made in the lower Court by C.W. Faridoon, in front of whose `Tandoor' the incident is said to have occurred, he was the first person to arrive at the scene of offence and saw that the deceased was lying drenched in his blood on the ground but there was no sign of his assailant. In fact, he has stated that he neither saw the respondent before the incident or after the incident. He has further stated that P. Ws.
Qasim and Mumtaz came subsequently and were called by P.W. Gul Bahadur. Another strong reason for not relying on the evidence of P.W. Qasim is that his name does not transpire as an eye- witness in the statement of first informant Mumtaz which was recorded at the Civil Hospital by S.I.
Naeem Bahadur some 4 hours after the incident. It is impossible to believe that if he had seen the incident, as alleged by him, this fact would not have found place in the statement. There is one more circumstance which makes us reluctant to place reliance on the testimony of this witness. As already stated, according to this witness he had gone to fetch water from the community tap when he heard cries coming from the side of Zareen Hotel. However, no witness has given the distance from the said community water tap to Zarin Hotel and the inspection memo of the scene of offence makes no mention of this community tap. It has been held by their Lordships of the Supreme Court in Mehar All v. The State (1) that the omission to indicate in site plan the position of the eye-witnesses at the time of occurrence, reflects on the possibility of the witnesses not being present at all at the time of the occurrence.
9. So far as the alleged dying declaration is concerned, the evidence in regard to it has been given, as already pointed out, only by P.Ws. Mumtaz and Qasim who are close relatives of the deceased.
We, however, are not impressed by this evidence. In the first place, looking to the number and nature of the injuries on the deceased, we are reluctant to believe that the deceased could have been in a position, after sustaining such serious injuries, to have been able to speak or even to have been conscious. The evidence, on the contrary seems to suggest that the deceased was throughout unconscious. No question was suggested to Dr. Ramzan, who had first examined the deceased, whether the deceased was in a position to speak or could have retained consciousness after sustaining such injuries. Furthermore, P.W. Gul Bahadur, who had brought first informant Mumtaz to the scene Qf offence, makes no mention of any dying declaration being made by the deceased. If the deceased in fact did make a dying declaration in the presence of P.W. Mumtaz, Gul Bahadur could not have failed to make mention of the same. We may also mention that according to C.W. Faridoon's statement in the lower Court, with which he has been duly confronted, the deceased was unconscious throughout from the time of the receipt of his injuries upto the time of his removal to the Civil Hospital. In the circumstances, we consider that no reliance whatsoever can be placed on the dying declaration.
10. Since the only two pieces of evidence which have been produced by the prosecution against the respondent do not inspire confidence, and on the; contrary appear to be highly suspicious, we consider that the learned Addi-I tional Sessions Judge rightly gave the benefit of doubt to the respondent and(' acquitted him. In the circumstances both the appeal and the criminal revision, application stand dismissed. The bail bonds furnished by the respondent are! Ordered to be discharged.