1988 PLP 1537 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the two convicts Muzaffar Baig and Saeed Baig as well as to the complainant, in two separate appeals, to examine whether the judgment of the Lahore High Court dated 4‑5‑1982 correctly upheld the,, convictions of Muzaffar Baig and Saeed Baig under section 302/34, P.P.C. and confirmed their sentence of death and acquitted the two others namely, Tariq and Farooq charged for the same offence. The prosecution case was that Mst. Azra Begum, a sister of Saeed Baig convict, was married to Naseer Baig, a brother of the two deceased, Iqbal Baig and Munir Baig. It appears that the husband and wife had no marital problems of their own but Iqbal Baig felt that the day Mst. Azra Begum was married and entered their family as wife of Naseer Baig, things had not been very smooth for them and he made a grievance of this fact a day before the occurrence which took place on 25‑2‑1976. Saeed Baig felt hurt over it and warned him of taking revenge for it. On the 25th of February, 1976 at about 12.30 P.M. Iqbal Baig had come to the house of Muneer Baig in village Mandran Wala, Police Station Narowal, District Sialkot. They happened to be in the Baithak when they heard the noise of a commotion outside the Baithak in the street. They came out of the house, and found that the two convicts and the two acquitted respondents, all armed with Chhuris and their two companions Buland and Iqbal armed with Sotis were out to attack them. Saeed Baig gave a Chhuri blow to Iqbal and it hit him in the belly, and caused injuries to Muneer. Muzaffar Baig also gave a Chhuri blow in the abdomen of Muneer. Tariq and. Farooq, also gave Chhuri Blows to Iqbal deceased. Muneer succumbed to the injuries at the spot. Iqbal Baig was removed on a cot to the Hospital. The occurrence had been seen by P.W.12 (Talib) who happened to be present at the adjoining house of his father at the relevant time, Mst. Khurshid Begum (P.W.14) mother of the two deceased and Mst. Irshad Begum (P.W.13), widow of Muneer Baig. Doctor Muhammad Hussain (P.W.2) examined Iqbal Baig at 3.00 p.m. and found the following injuries on his person:‑‑ (1) Incised wound 3" x " bone deep on the right side of head. (2) Incised wound 3" x x outer to injury No.1 and 2" from the right ear. (3) Incised wound 1 " x x " inner to injury No.1. (4) Incised wound 2 " x 1" muscles deep on the anterior aspect of left upper arm. (5) Incised wound 1/2 superficial one on the venteral aspect of left middle finger. (6) Stab wound 2" x " in the ampigastrium peritonial cavity was opened up and loob of small intestine and a piece of cut liver seen in the wound. Wound was bleeding alarmingly." He sent information at 4‑10 p. m. to the S. H . 0. through Ruqa Exh. PF that Iqbal Baig had been brought in injured condition and that his condition was serious. Alam Din, S.H.O., (P.W.17) reached the Hospital with Mehr Khan A.S.I. (P.W.16) and the latter recorded the statement of Iqbal Baig on which a case was registered against 6 persons charging them of the offences. The dead body of Muneer Baig showed the following two injuries on his person:‑‑ "(1) Incised wound 1" x " bone deep on the left side of head 3" from left ear. . (2) Stab wound 1" x " on the right hypocordium." Iqbal Baig also expired the next day. At the trial, Talib (P.W.12), Mst. Irshad Bibi (P.W.13) and Mst. Khurshid Begum (P.W.14) appeared in support of the prosecution case while two other witnesses named in the F.I.R. were given up and not produced. At the trial all the accused persons denied the charge, their presence or participation in the occurrence or the motive behind it: Saeed Baig explained the case against him in the following words:‑‑ "I am a Superintendent of Grade‑16 in the office of the Accountant‑General Lahore. I was on medical leave from 30‑1‑76 to 8‑4‑

76. I resided in my own house at Lahore. On 24th February, 1976 I had serious attack of illness and was admitted on the same day in the Mayo Hospital, Lahore; where I remained under treatment as an indoor patient upto 29th February, 1976. I was not present at the spot and have been falsely implicated by the complainant and witnesses." He produced in defence prescription Exh.DD discharge Certificate Exh. DE, certified copies of F.I . Rs. Nos.223, 225 of the year 1974 PS Narowal and certified copy of F.I.R. No. 2 dated 8‑1‑73 of PS Rayyia Exh.DF, DG and DH. He also produced letter NO. D2‑1(2)/80/692 regarding weather conditions and rain fall of Sialkot on 24/25‑2‑1976 Exh.DJ. Muzaffar Baig explained the case against him on the ground that he was a paternal nephew of Saeed Baig. In his defence he produced letter No.7511/3‑E‑/SVO dated 24‑12‑1977 which is Exh.DK. Iqbal accused had also produced evidence of alibi, Certificate Exh.DL, being employed in the Irrigation Department and was shown present at the Workshop on the day and time of occurrence. Accused produced in defence three witnesses. Hayat Ali Cheema (D.W.1), Accounts Clerk, Cost Section, Lahore Irrigation Nlughalpura, Lahore stated about the alibi by Iqbal accused. Asif Shabbir (D.W.2), Sub‑Engineer, Tubewells, Sub‑Division Sheikhupura, stated about the alibi of Muzaffar Baig and Muhammad Hussain (D.W.3), Record Keeper, .Mayo Hospital, Lahore, stated about the hospitalization of Saeed Baig. The trial Court accepted the dying declaration and believed the evidence in the following words:‑‑ "The occurrence took place in the broad daylight. The F.I.R. in this case was lodged soon after the occurrence. All the accused are armed in the F.I.R. Injuries are attributed to Saeed, Tartq, Farooq and Muzaffar accused. Blood‑stained chhuris were ‑recovered from Nluzaffar, Tariq and Farooq. All the witnesses have supported the prosecution case. The ocular account of this case is corroborated by the medical evidence, motive evidence, recoveries evidence and the dying declaration. The guilt of Saeed, Tariq, Farooq and Muzaffar accused is established beyond doubt." All the same the trial Court gave the benefit of doubt to Iqbal Baig and Buland Baig on the following reasoning:‑‑ "The case of Iqbal Baig and Buland Baig accused stands on different tooting. No injury is attributed to them and no blood stained article was recovered at their instance. The allegation against them is that they encircled the deceased. The case of Iqbal Baig and Buland Baig accused is not free from doubt. Hence, the benefit of doubt is extended towards Iqbal Baig and Buland Baig and they are acquitted of the charge. They are present on bail. They stand discharged from their bail bonds." Connecting the fatal injuries with the accused charged at the trial, Muzaffar Baig was sentenced to death for causing the murder of Iqbal Baig while Saeed Baig was sentenced to death for causing the death of Muneer Baig. All the four accused were sentenced to life imprisonment under section 302/34 P.P.C. and a fine of Rs.5,000 each or in default three months' R.I. On appeal and while seized of the confirmation of the death sentence, the learned Judges in the High Court re‑examined the entire evidence. The Dying Declaration which forms the F.I.R. was not accepted and the reasons given appear in the following words in the judgment:‑‑ ''It is strange that though A.S.I. Mehr Khan recorded the statement, yet he did not think it proper to put his signature on the statement. It is also peculiar that the statement .vas written by one person but was signed by the other, i.e. S.I. Alam Din. It is also to be noted that a certificate to the effect that Iqbal Baig deceased remained in full senses throughout the making of the statement was not admittedly obtained from the doctor. S.I. Alam Din claimed that the doctor remained present throughout the period of making the statement but, Dr. Muhammad Hussain (P.W.17), in his statement, admitted that he did not remain present throughout the time of recording the statement and that he could not definitely say whether statement Ex.PF/2 was recorded by the Sub‑Inspector or the Assistant, Sub‑Inspector. The relatives of Iqbal injured were admittedly present with him and were also present when the proceeding of the statement started. The doctor also, admitted that a patient in that condition could make a statement but not a lucid statement. Moreover, the condition of Iqbal deceased, as noted was that the pulse was not perceptible. The blood ,pressure was also not recordable near about the time that the recording of the statement commenced. The pulse rate in between 4 p.m. and 5 p.m. was high and the temperature was low and blood pressure was not recordable up to 5 p.m. A piece of cut liver was seen in the wound which was bleeding alarmingly. When the aforesaid condition, as noted by him, was brought to his notice, in cross‑examination, the doctor admitted that a patient, in such a condition, could not make a lucid statement. We on the contrary find that the dying declaration (Ex.PF/2) is a lucid and coherent statement. According to the prosecution version, injuries were caused at about 12.30 p.m. and the statement was recorded at some time after 4‑10 p.m. as it was on receipt of "ruqa Ex.PG, written at 4‑10 p.m. to Alam Din, S. H .O. that he reached the hospital and allegedly get the dying declaration recorded. During all the period, Iqbal Baig bled profusely and with that much loss of blood and in that condition an injured cannot make a lengthy, lucid as well as coherent statement specially when lie was admittedly vomiting repeatedly. It is thus not believable that Iqbal Baig deceased made the dying declaration (Ex.PF.2) as alleged by the Prosecution. Additionally, the doctor admitted that relatives of the deceased were present ire the hospital and were talking Iqbal Baig and that they were present even when the recording of the statement commenced. The possibility of tutoring or consultations, therefore, cannot be ruled out. For all these reasons, statement Ex.PF/2 cannot safely be held to have been made by Iqbal Baig deceased and hence we have decided to exclude the said dying declaration from consideration " The Alibi of the convicts was not believed on the ground that in any case the distance was such that they could cover in .spite of being shown on duty in the Workshop or having received medical attention in Mayo Hospital. The conclusion was recorded in the following words:‑‑ "Be that as it may, the important thing to be proved in this connection was the condition of Saeed Baig, if at all he was admitted in the hospital, as unless a person is incapable to move about, a visit to village Mandranwala from Lahore in these days can be easily made despite entry of admission in the record of the hospital. For all these reasons, we are not satisfied with the plea of alibi raised by Saeed Baig, appellant, and are not persuaded to accept the same." Tatib Masih's ocular account was rejected on the following ground:‑‑ "Talib Masih P.W. has some inimical background and he was a chance witness as he had no specific reason for being present at the time of occurrence in the nearby house of his father. His testimony, even otherwise, does not inspire confidence. We are thus left with the testimony of Mst. Irshad Bibi and Mst. Khurshid Begum P.Ws. Mst. Irshad Bibi is the wife of Munir deceased whereas Mst. Khurshid Begum P.W. is the mother of Munir and Iqbal deceased. Their presence in the house has neither been assailed nor can be doubted. The deceased were done to death in the street in front of the house of Munir deceased when he alongwith Iqbal deceased followed by the two ladies came out of the house. No reason was shown on record due to which it could be urged that Mst. Irshad Bibi and Mst. Khurshid Begum P.Ws. could have substituted the appellants for the real culprits. Their testimony so far as it stands corroborated by medical evidence can safely be relied upon for determining the guilt of the appellants." The accounts given by Mst. Khurshid Begum and Mst. Irshad Begum, were accepted in the following manner:‑‑ "The testimony of these ladies as against Muzaffar Baig and Saeed Baig, appellants, stands corroborated by the medical evidence as well as the evidence of motive. They had, however, involved Tariq and Farooq, appellants in general terms." Finally the conviction of the two and acquittal of two others was recorded on the following reasoning:‑‑ "Considering the number' and nature of injuries found on the persons of the deceased, the testimony of the ladies as against Tariq and Farooq, appellants, does not stand supported. It would, therefore, not be safe to convict Tariq and Farooq, appellants. We accordingly acquit Tariq and Farooq appellants on both counts for the offence under section 302/34, P.P.C. The conviction of Muzaffar Baig and Saeed Baig appellants under section 302/34, P.P.C. is maintained on both counts." The result was that the sentence of death awarded to Muzaffar. Baig and Saeed Baig on one count and of life imprisonment on another under section 302/34, P.P.C. and a fine of Rs.5,000 on each charge was upheld and the death sentence was confirmed while acquittal was recorded of the other two. Mr.Ijaz Hussain Batalvi, Advocate, the learned counsel for the accused has contended that the motive was flimsy and none was made out against Muneer Baig. If the husband and wife were living happily, feeling of other members of the family could not have mattered and occasioned the occurrence resulting in fatal injuries to two brothers out in the street as is alleged. The learned counsel also considers that the reasons which accounted for the acquittal of those charged for the same offence fully justified the acquittal of these convicts also. According to the learned counsel, the alibi of both the convicts was reasonably established and evidence was sufficient to cause serious doubt on the prosecution case. What added to the weight of the evidence produced by the defence according to the learned counsel was that the charges of smuggling were repeatedly levelled against the two deceased, their contacts and movements along the border for purposes of smuggling were mentioned. Besides one of the witnesses to the recovery had stated that the blood stains were scraped from the Drawing Room and not from the street where the occurrence is said to have taken place. The learned State Counsel, on the other hand contended that the Dying Declaration was recorded soon after the occurrence in the presence of the doctor, and it should have been accepted as correct and truthful account of the occurrence and it was by itself sufficient to arrive at the guilt of the accused named therein. The learned State Counsel also contended that Mst. Khurshid Begum and Irshad Begum being occupants of the house were natural witnesses and their evidence should have been accepted in its entirety. As regards the evidence of alibi pleaded by the convicts the learned State Counsel considered that the learned Judges of the High Court had rightly considered it uninspiring and insufficient. The learned Judges of the High Court have given at least five well‑considered reasons for not believing the dying declaration. B The view taken is unexceptionable. Zafar Iqbal (PW.10) stated about the recovery of blood stains in the following words:‑‑ "The Police took into possession the blood stains from the place of occurrence in my presence ........................... The blood was dry and coagulated. It was scratched from the ground ..It is correct that the blood was scratched from inside the Baithak of Iqbal and Muneer deceased." This statement by a witness of the prosecution, related and friendly to the complainant party is revealing in more than one respect and lends strength to the defence version rather than the prosecution case. The evidence of alibi given by Muhammad Hussain DW.3, clearly shows that Saeed Baig s/o Mirza Mahmood Baig remained admitted in the Mayo Hospital from 24‑2‑1976 to 29‑2‑1976, as an acute case of meningitis. The only question put to the witness in cross‑examination was whether the record showing his admission in hospital was prepared subsequently and he denied it. To conclude that a patient suffering from acute meningitis can leave the hospital to commit murder at a distance and come back to the bed amounts to rejection of the evidence of illness for which there was no material whatsoever. Considering all these facts we consider that the prosecution has not succeeded in proving the case against the convicts beyond reasonable doubt and the convicts are entitled to acquittal. Their appeal against conviction and sentence is accepted and their conviction and sentence is set aside. They shall be released forthwith unless their detention is required in some other case. The appeal of the complainant against the acquittal fails and is hereby dismissed. Those on bail are discharged of their bail bonds. M.Y.H./K‑62/S Appeal allowed.