1980 PLP 979 (SCMR)

DORAB PATEL, J.‑‑Haji Abdul Karim was attacked on 7‑9‑1973 in the area of mauza Daulatpur by assailants armed with hatchets. He received as many as eight incised wounds and the attack proved fatal. He died on the same day. However, according to the prosecution, the occurrence took place 'between 2 and 3 p. m, and as the deceased died in the evening, he was able to lodge the F. I. R. himself, which was relied upon by the prosecution as a dying declaration on account of his death. In his F.1. R. the deceased implicated the first three respondents in this appeal, and we may explain here that the first respondent, who is now dead, was the father of the second respondent. Now, according to the F. I. R. the motive for the crime was that he (the deceased) had given information to the Police that the second respondent had committed theft and this respondent was ultimately tried and convicted, therefore, he and his father and the third respondent had taken their revenge by killing him. It would not be irrelevant to 'point out here that specific roles have been attributed to the three respondents in the F. I. R., therefore, they were arrested in due course, and, according to the prosecution, whilst in custody, they produced the hatchets used by them in the occurrence which were stained with blood, therefore, in due course, they were tried for the murder by the Sessions Judge, Rahimyar Khan. In order to prove the occurrence, the prosecution examined Ghulam Nabi and Masoo as eye‑witnesses of the occurrence and relied upon the F. I. R. as a dying declaration. We pointed out that the prosecution claimed to have recovered blood‑stained hatchets from the first three respondents (hereinafter referred to as the respondents) at their instance, but because of the gross delay in forwarding the hatchets to the serologist, the report was that the blood on these hatchets had disintegrated. Therefore, the prosecution relied on the evidence of the two eye‑witnesses and on the dying declaration which also contained the motive for the murder. The respondents pleaded innocence and said that they had been falsely implicated on account of enmity, but they did not produce any evidence in their defence. The learned Sessions Judge did not place any reliance on the dying declaration and perhaps for this reason, he did not question the respondents about it under section 342, Cr. P. C. He, however, was impressed by the ocular evidence and he was of the view that it was corroborated by evidence of motive and that it was not inconsistent in any way with the medical evidence, therefore, he convicted the re6pondents under section 302/34, P. P. C. and sentenced them to death fines here also imposed. The respondents challenged their conviction in an appeal in the Lahore High Court, which was heard with the reference from the Sessions Court. The learned Judges of the Lahore High Court agreed with the view of the Sessions Court that the dying declaration was not fit to be relied upon. But unlike the Sessions Court, they were not impressed by the evidence of the two eye‑witnesses, because they had falsely claimed to be disinterested eye‑witnesses. Additionally, the learned Judges carefully examined the medical evidence and pointed out that, according to the evidence of Dr. Abdul Tawab, who carried out the post‑mortem of the deceased, the occurrence had taken place on the morning of 7‑9‑1973 and not at 2 or 3 p.m. as claimed by the deceased in his F. I. R. cum‑dying declaration and by the eye‑witnesses. Therefore, they held that the ocular evidence did not inspire confidence and as there was no other evidence to implicate the respondents, they gave them the benefit of doubt and acquitted them. The son of the deceased filed a petition for leave in this Court against the judgment of the High Court and his learned counsel submitted that the learned Judges of the High Court had erred in preferring the medical evidence to the ocular evidence because the evidence of the two eye‑witnesses about the time of the occurrence was supported by that of other Police constables, who were totally disinterested witnesses. Therefore, leave was granted to examine the question whether the acquittal of the respondents was in accordance "with the established principles of appraisal of evidence for the safe dispensation of criminal justice." Mr. Mohammad Bashir, who appeared for the State, tried very hard to persuade us to accept the dying declaration as genuine and reliable, but, as we pointed out, the learned Sessions Judge failed to question the respondents about it. Therefore, on this ground alone, it was rightly rejected by the learned Judges of the High Court and as the blood on the hatchets alleged to have been recovered from the respondents had totally disintegrated, the prosecution case rests entirely on the ocular evidence. Both Ghulam Nabi and Masoo have supported the statement of the deceased in his F. I. R.‑cum‑dying declaration that he was attacked by the 'respondents as he came out after his Jumma prayers. But, even a casual examination of the wounds on the deceased (vide the evidence of Dr. Abdul Tawab) proves that the two eye‑witnesses had tried to exaggerate the role of the assailants in the murder. Additionally, Masoo admitted that he was a cousin of the deceased and that he had been "involved in proceeding under section 107/151, Cr. P. C. against the accused persons..." Therefore we agree with the view of the learned Judges that he was an inimical witness whose evidence cannot be accepted without corroboration. But, not only was Ghulam Nabi, this witness's cousin, but he had falsely tried to pass off as an independent witness. Therefore, as the evidence of. these' two witnesses about the time of the occurrence was also discrepant with Dr. Abdul Tawab's estimate of the time of the occurrence, the learned Judges reached the conclusion that the eye‑whiteness s not witnesses of truth; Mr. Mohammad Bashir submitted that a doctor's estimate of the time of a death was always tentative, That is correct, and we‑would only further observe that the value of medical opinion about the time of murder depends amongst other considerations on the competence and experience of thea doctor, but, unfortunately, in the instant case, nothing is known of the experience and competence of Doctor Abdul Tawab. Additionally, learned counsel submitted that the evidence of a foot constable, Rusul Bakhsh, and Ghulam Hussain village Chowkidar, was inconsistent with the medical evidence, therefore, the learned Judges had erred‑in relaying on it. We have examined the evidence of both these witnesses with the assistance of the learned counsel and we find that they merely gave evidence that they had carried the deceased on a cot to the police station and we find, Ghulam Hussain said that he and others had carried the deceased to the Police Station on a cot, whilst the foot constable, Rasul Bakhsh, claimed to have accompanied the deceased from the Police Station to the hospital and he further said that the deceased died on the way to the hospital. Now, unfortunately for the prosecution, neither of the witnesses have stated when they were with deceased, but as the F. I. R. was recorded at 5‑30 p.m., learned counsel wanted us to hold that the evidence of these two 'witnesses proved that the deceased had died sometime after 5‑30 p.m. Mr. Mujeebur Rehman, therefore, drew our attention to the fact that, according to the inquest report, the deceased had died at 5 p.m. Now, if the deceased was dead by 5 p.m. it is not possible to understand how he could have lodged his F. I. R.‑cum‑dying declaration at 5‑30 p.m. Therefore, the manner in which the F. I. R. was recorded does not inspire confi dence, but we would not dilate on this aspect of the case, because we have held that in any event, the F. I. R. is not fit to be relied upon as a dying declaration. Accordingly, we will assume that the learned Judges erred in rejecting the ocular evidence on account of Dr. Abdul Tawab's opinion that the deceased had died on the morning of 7‑9‑1973. However, this assumption does not further the prosecution case, because of Ghulam Hussain's evidence on which learned counsel, Mr. Mohammad Bashir, relied so heavily. Ghulam Hussain said in his evidence that he was the village Chowkidar and that on the day of the occurrence :‑ "Ghulam Nabi P. W. came and told that some persons had fought with Abdul Karim deceased. He did not tell the names as well as the number of assailants. I alongwith Hazoor Bakhsh, Ahmad Din and Ghulam Nabi. P. Ws. went to the place of occurrence and took cot with us. We saw Abdul Karim deceased in injured condition lying there. Masoo and Amir Bakhsh P. W. were already present there. We carried Abdul Karim deemed on the cot to police station. Abdul Karim deceased was conscious when we carried him to the police station. Munshi of the police station recorded his statement in my presence. He was in senses at that time and he thumb marked." Then in cross‑examination‑ the witness‑ said "The deceased had not talked with any of the said persons, when he was being taken from the spot to the police station." We agree with Mr. Mujeebur Rahman that this statement does not inspire confidence, but even if it is assumed that the deceased would not disclose the names of his murderers to any one, and that is a thing extremely difficult to believe, information about the murder had been given to Ghulam Hussain by Ghulam Nabi, who said that he had seen the three respondents challenge the deceased and then kill him. Yet Ghulam Nabi did not give the names of the assailants to Ghulam Hussain even though he was a village Chowkidar. This is absolutely impossible to believe, and in the circumstances, we agree with the view of the learned Judges of the High Court that no reliance can be placed on Ghulam Nabi's evidence, but the only other evidence is that of Masoo, who was admittedly an inimical witness, and his evidence cannot be accepted without corroboration but there is no ‑such corroboratory evidence. In any case, the prosecution case rests only on the evidence of these two eye‑witnesses and the question was entirely of the veracity of Ghulam Nabi and Masoo. Therefore, we see no error of law in the finding of the High Court that the evidence of these two witnesses does not inspired confidence and, therefore, the learned Judges rightly gave the benefit of doubt to the respondents. The appeal is without merit and is dismissed. Appeal dismissed.