1970 P Cr (PLP)

(7) An incised wound 1 " x 1/8" x skin deep on the outer aspect of left knee. Left fifth rib was cut near costal and under injury No.

3. Chest cavity contained blood. Trachea was cut. Left lung had a cut mark on its outer border in middle. Left diaphragm had a cut mark under injury No.

3. Stomach had a cut mark on its upper part under injury No.

3. It was empty. The death according to the doctor resulted due to respiratory failure and haemorrhage under injuries Nos. 1, 3 and 4.

6. The Sub‑Inspector went to the place of occurrence and inspected it next morning. He took blood‑stained earth from the place of occurrence and made it into a sealed parcel. On 13th of November 1969, all the appellants were arrested. The Sub‑Inspector took into possession the blood‑stained Chaddar Exh. P. 1 and shirt Exh. P. 2 of Inayat appellant and made them into a healed parcel vide memo. Exh: P. B. Nazar Hussain's blood‑stained chaddar Exh. P. 3 was also made into a sealed parcel. There were two injuries on the person of Nazar Hussain. He was sent for medical examination.

7. The doctor examined Nazar Muhammad on the same day at 5‑30 p.m. and found that he had an incised wound on his person 2" x 1/4" x 1/6" on the web between the left thumb at td the left index finger, and another incised wound x 1/6 x 1/6 on the inner lower part of left palm, The injuries were simple in nature.

8. On 17th of November 19 6, 1.nayat appellant while in custody led to the recovery of knife Exh. P‑ 4 from under a beem of his cattle‑shed. It was blood‑stained and was, sealed into a parcel. ‑On the same day Nazar Husain while in custody led to the recovery of a knife P. 5 from an earthen bin from his house. The knife was lying under the cotton in the bin. It was also blood‑stained and was sealed into a parcel.

9. The report of the Serologist shows that the scrapings from the knives and the cutting from the clothes of Nazar and Inayat were stained with human blood.

10. The ocular testimony in this case consists of the evidence of Ghulam Husain (P. W. 13), Muhammad Yaqub (P. W. 14) and Nasir Din (P. W. 15). The witnesses of recoveries are Mansab Ali (P. W. 9) and Yamin (P. W. 10). The other wit nesses are formal. We get an impression from the evidence that the witnesses were reluctant to admit their relationship or effinity inter se inter se but we find from the evidence of Mansab Ali (P. W. 9) that he is a brother of Ghulam Husain (P. W. 13). Both Ghulam Hussain and Mansab Ali are the maternal uncles of Farzand Ali deceased. They are collaterals of Yamin (P. W. 10) and Yaqub (P. W. 14). Mansab Ali admitted before the committing Magistrate that he and the father of Yamin P. W. were first cousins but he denied this relationship at the trial and stated that his great‑grand‑father and the great‑grand‑father of Yamin might be brothers. Chhajju Khan (P. W. 16) had admitted before the committing Magistrate that he and Nasir Din were distantly related but he did not own that statement at the trial.

11. Nazar Hussain appellant stated at the trial that blood stained chadder had been recovered from him although he had denied this fact before the committing Magistrate. He made the following statement before the Sessions Judge. "It is a fact that I was examined for my injuries. The fact is that on 11th November 1960, at digarwela, I was present at the shop of Muhammad Ali my relative where my uncle Shera co‑accused came and told me that Farzand Ali had in sulted him and abused him, but since we are Moeens' of the village and he is a `Rajput', therefore, we have no comparison. Shera thereafter left. After sometimes Muhammad Ali went to offer his Digar prayer. I was alone at the shop of Muhammad Ali. Farzand Ali `Lambardar' deceased carne there and abused me. He insulted me. He said that he would take away our womenfolk to the police station because he was insulted by Shera. I stopped him from insulting him upon which Farzand Ali deceased attacked me with the knife. I resisted it and received injuries on my left hand. I realised that Farzand Ali was out to kill me. He attacked me for the second time. I received an injury on my left hand. In the E meanwhile I had picked up a pen‑knife lying in the shop of Muhammad Ali. Farzand Ali was about to attack me for the third time but in my self‑defence, I inflicted injuries upon him. I might have inflicted 2 or 3 injuries upon him. I cannot give the exact number of the injuries inflicted by me. I thereafter went home." Inayat appellant denied the recovery of blood‑stained shirt and chaddar from him as also of a blood‑stained knife. He and the other appellants namely Shera and Husain Muhammad com pletely denied the charge and ascribed the case to enmity of the prosecution witnesses. The appellants produced Muhammad Siddiq D. W. 1 to state that the occurrence had not taken place at his shop till asarwela. Their stand was that the occurrence had taken place near the shop of one Muhammad Ali.

12. The learned Sessions Judge believed the eye‑witnesses but discarded the evidence of dying declaration on the ground that the doctor had not given a categorical opinion as to the ability of the deceased to make a statement and also because according to the post‑mortem report, the trachea of the deceased had been cut. He was, therefore, of the opinion that it could not safely be said that the statement could have been made by the deceased in that condition.

13. We have heard the learned counsel on both sides at length. In the first place there is unexplained delay in lodging the first information report. It is in the evidence of Ghulam Husain, the first informant that before the deceased could be sent to Civil Hospital, Gujranwala they had, to wait for 2 or 2 2/3 hours at Qila Didar Singh. It is not explained why the deceased was not carried to the police station which is at a dis tance of three killas from the bus stand. In any case, one of the attendants of Farzand Ali could go to the police station, and lodge a report. There is no explanation as to why this was not done.

14. We have also a feeling that the first information report was not lodged at the time at which it purports to have been made. Chhajju Khan had left Qila Didar Singh with the injured person for Gujranwala. He had been told that Ghulam Husain was going to lodge the report. In the ordinary course of events, the doctor at Gujranwala or for‑matter of that Akhtar Ali, Head Constable should have been told by Chhajju Khan that a report had already been lodged at Police Station, Qila Didar Singh. The failure of the Sub‑Inspector to communicate with the police at Gujranwala or follow the injured person to the hospital in order to arrange for the recording of his‑ dying declaration or take any other step in the investigation of the case is another indication to that direction. It should have been the first con sideration with any Sub‑Inspector who can be credited with a sense of duty. Neither the S.I. nor any officer from the Police Station Qila Didar Singh appears to have reached the hospital in this connection. 15. 'The Sub‑Inspector claimed that he reached the spot at t0‑15 p.m. The place of occurrence is described in the F. I. R, as only two miles from the police station. He stated that he left the police station for the spot at 6‑20 or 6‑30 p.m. Even if we accept his word that the distance between the police station and the spot is four or five miles it is not explained why should he have taken about four hours to reach the spot. He does not appear to have done anything; substantial during the night. He failed to collect tile blood‑stained earth. He stated that he failed to do so because there was not sufficient light. He admitted that he had a hurricane lantern with him. If he had gone to the spot as claimed by him, there was nothing to prevent him from taking the blood‑stained earth in the light of the hurricane lamp. The Sub‑Inspector is given a lie by Ghulam Husain (P. W. 13) the first informant who should have ordinarily accompanied him to the spot. He stated that no police officer came to tile spot during the night and the police came on the next day at about 7 a.m. and it was then that the statements of the eye‑witnesses were recorded. Muhammad Yaqub (P.W.14) was perhaps very anxious to show the promptitude of tile police and stated that the police had reached the spot at 7 p.m. the sank evening. We have seen that this is not even the stand of the Sub‑Inspector. The Sub‑Inspector stated that he left the spot at 4 a.m. on the next morning for Gujranwala and would like to have us believe that by then he did not know that Farzand Ali had died. Akhtar Ali,

11. C. P. W. 17 stated that the Investigating Officer reached the Civil Lines Police Post, Gujranwala, at 11 a.m. It is hard to believe that the Sub‑Inspector took seven hours to cover a journey of about ten miles on a route where according to tile evidence oil record buses leave after every five or ten minutes. We have seen that Ghulam Husain stated that no Police Officer visited the spot in the evening. It appears that the Sub‑Inspector was aroused to activity only when he learnt next morning that Farzand Ali had expired,

16. The whole conduct of the Sub‑Inspector shows that the F. I. R. had‑ not been recorded at the time alleged by the pro secution. There was certainly some deliberation and the guarantee that the law has enjoined with regard to promptness and straightforwardness of investigation of the criminal cases appears to have been parted in this case.

17. We are also of the opinion that the learned Sessions Judge was not correct in rejecting the evidence of dying declara tion. It is true that Dr. Sajid‑ul‑Qayyum who attested this declaration was not asked any question about it when he appeared before the committing Magistrate. He was out of the country when this case came up for trial and neither the prosecution nor the accused had any opportunity to examine him further. The A main ground that appears to have weighed with the learned Sessions Judge in rejecting this piece of evidence is the medical opinion that the trachea was cut. Injury No. I oil Farzand Ali was described by Dr. Sajid‑ul‑Qayyum, who examined him when he was brought in an injured condition, in the following manner:‑

1. An incised wound 2 " x " x depth reaching trachea situated on the left of the mid of front of neck. It is described in the same terms by the doctor who performed Nazar the post‑modem examination. The description of this injury, Hussain therefore, does not show that the trachea or the vocal chords had been cut to such an extent that the deceased could not speak. We also find that neither Akhtar Ali, H. C. nor Dr. Sajid‑ul‑Qayyum, whose signatures on the dying declaration were identified by Islam‑ud‑Din (P. W. 19) had any interest to fabricate this piece of evidence. Actually, the dying declaration does not conform to the case of the prosecution as unfolded in the F. I. R. and this is another reason for saying that the F. I. R. was drafted later. The names of the witnesses have not been given in this dying declaration. The name of Siraj the fifth accused was also not mentioned therein. Perhaps, the prosecutor before the committing Magistrate did not ask any question about this document 8 from the doctor as a strategic manoeuvre to avoid contradiction in the case of the prosecution. We, therefore, regard the dying declaration as a valid piece of evidence. In this document the names of all appellants have been mentioned as the assailants. It is, however, essential to look for corroboration in respect of each appellant before it can be acted upon. In Tawaib Khan and another v. The State (P L D1970 S C 13) the Supreme Court has held that a dying declaration and the testimony of an interested witness arc at par.

18. So far as the ocular testimony is concerned, we find that we cannot take it at its face value. All the three witnesses appear to be chance witnesses. Ghulam Husain claims to he smoking huqqa with the deceased at the time of the occurrence but he was not mentioned by the deceased in his dying declaration. Perhaps it may not have been possible for the deceased in the extreme condition of anguish and physical pain to name all the witnesses but when he pointedly mentioned the fact of smoking huqqa, he could not have failed to mention the name of Ghulam Hussain. The deceased was opposed by Siraj the co‑accused of the appellants in a lambardari case. Ghulam Hussain (P. W. 13) expressed ignorance whether his son had been sentenced to two years' R. I. In a theft case and Siraj Din had appeared as a pro secution witness against him. He admitted that Siraj Din's brother had filed a case against him in respect of a house. He denied that he had appeared against Siraj in a hurt case although he stated before the committing Court that he did not remember that fact. Nasir Din admitted that he was one of the contestants in a lambardari case against Siraj. He also admitted that his brother was an accused in a hurt case and Siraj Din was an accused in the cross case registered about the same matter. The learned Sessions Judge observed that the witnesses may be inimical to Siraj but they had no enmity wail the appellants. Surely, there is nothing on the record to show that the witnesses were inimically disposed against the appellants before the commission of this offence. But we cannot divide the human mind into water tight compartments while assessing its working. All these witnesses were interested in securing the conviction of Siraj in this case and in order to achieve their' object they could be expected to go to any length. Their evidence against the appellants cannot, there fore, be said to completely detached from the malicious motive they had against Siraj. A reading of the evidence of Ghulam Husain clearly shows that he was even reluctant to admit that his son had been challaned in a theft case and had been con victed. Exh. D. D. is a copy of the statement of Siraj made against his son Salam Din in a theft case.

19. The motive part of the prosecution story was stated by Abdul Latif (P.W. 12) and Ghulam Husain (P. W. 13) the first informant. The latter had not mentioned the name of Abdul Latif in the F. I. R. and we feel that the name of Abdul Latif as a witness of the motive ‑ was introduced later on. We, however, think that the motive in this case stands proved. Nazar appellant admitted that there was an altercation between Shera and the. deceased in which the latter had abused Shera.

20. The three eye‑witness of the occurrence are, however, chance witnesses. Ghulam Husain claims to have been smoking huqqa with the deceased but as observed earlier, the deceased slid not name him into dying declaration. Muhammad Yaqub P. W. was proceeding from his house to the tubewell when he saw the occurrence. Before the committing Magistrate lie had stated that he was actually going to his house when he saw the occurrence. Similarly, Nasir Din ix a chance witness as he states that lie was proceeding from his well to his house. Ghulam Husain claimed that Nasir Din P. W. had accompanied him to Qila Didar Singh with the injured person but was sent back to the spot. We do not understand the purpose of this futile journey of Nasir Din to Qila Didar Singh and back. Perhaps he was not available and the above statement was made in order to show that lie was all along associated with the activities of Ghulam Husain.

21. We have seen that Mansab Ali (P. W. 9) is a brother of Ghulam Husain, the first informant, and is collateral of Yamin (P. W. 10) the other witness of recovery. They cannot be said to be independent and unattached witnesses for the reason that they were related to the deceased and were interested in securing the conviction of the accused particularly of Siraj Din who is admittedly their enemy. The Sub‑Inspector claimed that the accused were produced before him by one Sardar Rehmatullah of Kot Bhawanidas which village is at a distance of four or five miles from the place of occurrence and their blood‑stained clothes were removed immediately thereafter. This Sardar Rehmatullah would have been the most appropriate witness of the recoveries but the Sub‑Inspector chose to have these recoveries attested by two interested witnesses. Mansab Ali (P. W. 9) stated that he did not know from where the Sub‑Inspector had brought the accused although according to the Sub‑Inspector both the re covery witnesses were present at the time of the production of the accused. Mansab Ali also stated that there were fifteen or twenty other persons present at the time of the recoveries but none of them appears to have been asked to witness these recoveries. Mansab Ali also stated that the recovery of the blood‑stained clothes and knives was effected on the same day although we know it that according to the Sub‑Inspector there is a gap of four days between these recoveries. The Sub‑Inspector stated that he had met the two recovery witnesses at the dera of Gulzar, but Yamin stated that he and Mansab Ali had met the Sub‑Inspector by chance in a lane when he was going with the accused who were in custody with him. He also stated that there was no other person present except himself and Mansab Ali when the knives were recovered. This witness, in the first instance, stated that they had attested the recovery memos. in the school but further modified the statement and stated that the memos. of the recovery of the knives were written at the spot. We cannot therefore, hold that these recoveries were made in the manner as alleged by the prosecution. There is no corroboration forthcoming with C regard to the participation of the appellants other than Nazar Husain. Their conviction cannot be sustained.

22. The incident is admitted by Nazar Husain appellant and the question before us is to determine whether or not he acted in self‑defence. According to him, the deceased had come equipped with a knife to attack him. There is no denying that the deceased's sense of prestige as a zamindar had been outraged by the refusal of a Kumhar to abide by his wishes to carry the paddy to Qila Didar Singh, but Nazar Husain had a stronger motive to attack the deceased because his uncle had been maltreated and manhandled. If the deceased had come with an intention to attack Nazar Husain or his relative, he would have been ordinarily accompanied by some supporters. Even if he had come alone armed with a knife, he would not have received seven injuries in the manner in which he did. Nazar Husain stated that he picked up the knife from the shop of Muhammad Ali and attacked the deceased in self‑defence if the deceased had been armed, he would not have given time to Nazar Husain to go and pick up the knife. It is true that Nazar Husain also received two injuries on his left hand and the prosecution have not explained them. In all probability, he received these slight in juries in the excitement of the attack from his own hand or per haps he was accompanied by somebody else from whose hands he accidentally received the injuries.

23. There is nothing on the record to support the bare word of Nazar Husain that he received these injuries from the deceased. We, therefore, find that Nazar Husain was rightly convicted by the learned Sessions Judge. The appeal on his behalf is dismissed. The appeal of the other appellants is allowed. Their conviction and sentences are set aside. They shall be set at liberty forthwith unless they are lawfully required to be detained in connection with some other case. The appeal and the murder reference are dis posed of accordingly. The sentence of death imposed on Shera is not confirmed. Order accordingly.