1994 P Cr (PLP)

CH. GHULAM SARWAR, J.

Ayyub son of Muhammad Murad appellant alongwith Khattu, Gul Muhammad alias Gullu and Muhammad Ali co-accused stood the trial under section 302/382/411 read with section 34, P.P.C. for being armed with Dangs and gun and in furtherance of their common intention committed the murder of Ali Baig, deceased during the commission of theft of his camel. Vide judgment, dated 23-12-1990 passed by the learned Sessions Judge, Rajanpur Ayyub appellant was convicted under section 302, P.P.C. and was sentenced to death. All his three co-accused were acquitted of the charge under section 302, P.P.C. However, the appellant and the three acquitted accused were convicted under section 382, P.P.C. and were sentenced to undergo three years' R.I. each. Khattu accused was also convicted under section 411, P:P.C. and was sentenced to undergo two years' R.I. Benefit of section 382-B, Cr.P.C. was also given to all the accused.

2. The learned Sessions Judge has sent the reference as required under section 374, Cr.P.C. for the confirmation of the death sentence vide Murder Reference No.20 of 1991 and in return Ayyub appellant has filed Criminal Appeal No.2 of 1991 against his conviction and sentence. The remaining three co-accused have not challenged their conviction of sentences recorded against them under section 382 or section 411, P.P.C. This judgment will dispose of both the murder reference as well as the appeal filed by Ayyub appellant.

3. The case vide F.I.R. No.34, dated 8-2-1989 was registered at Police Station Rojhan by Khadim Hussain, A.S.I. P.W.10 at the statement of Ali Baig, deceased at 3-15 a.m. after mid-night on 8-2-1989 when the occurrence had taken place at 1-1/2 a.m.

4. The case of the prosecution, as revealed in the F.I.R. is that Ali Baig deceased tethered his camel of red colour in the evening of 7th of February, 1989 in an open place under the sky outside his house. At about 1-30 a.m. he and his sons Ali Murad P.W.6 and Di1,Murad P.W.8 were awakened at barking of the dog. All of them came out of the house. The deceased flashed torch light and saw Khattu, Gul Muhammad and Muhammad Ali co-accused armed with Dangs when Ayyub appellant was armed with .12 bore gun, while taking away his camel. The deceased asked the thieves to stop but they did not. Conversely they forbade the deceased and his sons to step forward to catch hold of them. Dil Murad and Ali Murad P.Ws. were successful in catching and overpowering Khattu accused. In the meantime the appellant fired a shot with his gun which hit the deceased on his left flank. He fell down on the ground. The appellant, Gullu and Muhammad Ali co-accused fled away alongwith offence weapons leaving the camel on the spot but Khattu co-accused was apprehended at the spot and he also received injuries according to the F.I.R. during the scuffle. Dil Murad and Ali Murad P.Ws. were taking Ali Baig to the hospital when Khadim Hussain, A.S.I. met them on the way and Ali Baig made the statement Exh.P.O. with him.

5. Khadim Hussain, A.S.I. P.W.10 after recording the statement obtained the thumb-impression of Ali Baig deceased on Exh.P.O. and then prepared his injury statement Exh.P.l and referred him to the hospital Rojhan for examination and treatment. The complaint Exh.P.O. was sent to the police station for preparing its formal F.I.R.

6. The doctor at Rojhan Hospital after giving aid to Ali Baig injured referred him to Civil Hospital, Dera Ghazi Khan, the condition of the patient being serious. Ali Baig was taken to the hospital at Dera Ghazi Khan but he expired there. Information regarding death of the deceased was given by Waris Ali, Constable P.W.2 through wireless to the Incharge of Police Station Rojhan. Consequently the police converted the offence under section 302, P.P.C. Khadim Hussain, A.S.I. P.W.10 while reaching in the hospital prepared the inquest report of the deceased which is Exh.PJ. The I.O. immediately reached the place of occurrence where Khattu co-accused was handed over to him when he was present in the custody of Ali Gul and Hazoor Bakhsh, Khattu co-accused was arrested and an iron tipped Dang P.9, two pairs of shoes P.12/1-4, one Turban P.13 and one Lokar P.14 were recovered vide recovery memo. Exh.P.N. Torch P.10 and the camel were also secured by the I.O. vide recovery memo. Exh.P.K. Blood-stained earth from the spot was also secured vide recovery memo. Exh.P.L., empty cartridge P.11 was taken into possession vide recovery memo. Exh.P.M. The last-worn clothes of the deceased Ali Baig P.1 to P.5 were taken into possession vide recovery memo. Exh.P.B. The I.O. also took into possession gun P.6 produced by Ayyub appellant from his house vide recovery memo. Exh.P.E. The Dangs from the remaining accused were also taken into possession vide recovery memos. Exhs.P.G. and P.F. Khattu accused was got medically examined and three injuries were found on his person, being simple in nature caused by blunt weapon. The probable duration of these injuries was about 12 to 24 hours. Exh.P.B. is the medical report.

7. Dr. Ghulam Fareed P.W.7 did the post-mortem examination on the dead body of Ali Baig deceased on 9-2-1989 and found the following injuries on the dead body. (1)??????? Five fire-arms wounds in an area of 4" x 4" x chest cavity deep at the outer aspect of left lower chest and upper abdomen. Each wound was 1 c.m. x 1/2 c.m. x chest cavity deep. The edges of wounds were rough inverted and black. This was the wound of entrance. (2)??????? Six fire-arms wounds at the front of left lower chest. Hypochondrium, and epigastrium in an area of 6" x 6" x chest cavity and abdominal cavity deep. Each wound 3/4 c.m. x 3/4 c.m. almost circular. The edges of wounds were everted, rough and torn. This was wound of exit. The doctor found the skull, scalp, brains and membranes healthy. The chest wall was injured and left chest cavity was full of blood. Left lung was badly injured. Abdominal wall and peritoneum and peritoneal cavity was full of blood. Diaphragm, stomach pancreas, small and large cut. Liver, spleen and left kidney were badly injured. Bladder was containing some urine. The doctor also opined that rest all the abdomen, thoracic, viscera were healthy. According to the opinion of the doctor both the injuries were ante?mortem and caused by fire-arm and proved fatal to life and the cause of death in the present case was haemorrhage, shock and injuries to the vital organs, those were lungs, liver, spleen etc. due to injuries Nos.1 and 2, which were sufficient to cause death in the ordinary course of nature. He also gave opinion that the duration between injuries and death was six to twelve hours and between death and post-mortem was 26 hours and 30 minutes. Exh.P.H. is the post-mortem report and Exh.P.H./1 is the diagram showing the locale of injuries.

8. To substantiate the charge against the appellant the prosecution examined ten P.Ws. including Dr. Muhammad Ayyub P.W.5 who examined Khattu co-accused and Dr. Ghulam Fareed P.W.7 who did the post-mortem examination on the dead body of the deceased. Ali Murad and Dil Murad P.Ws.6 and 8 were examined as the eye-witnesses of the occurrence while Khadim Hussain appeared as the Investigating Officer, the remaining are the formal or the recovery witnesses of the incriminating articles. The learned D.D.A. tendered in evidence the positive reports of the Chemical Examiner Exh.P.T. Serologist Exh.P.U. and that of the Forensic Science Laboratory Exh.P.V and closed the case for the prosecution by giving up Hazoor Bakhsh P.W. as being unnecessary.

9. When confronted with the prosecution evidence the appellant and the remaining accused traversed the allegations in their entirety and while. professing their innocence they took up the plea that they were involved due to enmity and party-faction prevailing in the locality except Khattu co-accused who has stated as under:-- ?Uncle of Ali Beg deceased (complainant) was declared Kala with my relative Mst. Chatti. The complainant party approached us for effecting compromise. The dispute was not settled. The complainant party deemed that I was hindrance in the way of their compromise, so they in order to pressurize me for effecting compromise involved me in this case falsely. In fact I was watering my fields at a distance of two or three acres. I went to the spot after hearing the gun reports, where I found Ali Baig deceased injured. The complainant party made me sit there and also gave beating for the aforesaid reason. All the witnesses are close relatives of the deceased, so they have deposed against me.? The appellant and the co-accused however, did not step into the witness-box and also led no evidence in defence.

10. The learned counsel for the appellant submitted that it is a dark night occurrence wherein the appellant and his co-accused namely Gul Muhammad and Muhammad Ali were not identified. The story put forth by Khattu is correct as it was a blind murder and when he reached the spot after hearing the fire report he was involved in the case due to enmity. It was argued that the statement of the deceased before the police is not actually the first information report which was subsequently prepared by the police after preliminary investigation because according to the learned counsel Ali Baig deceased was seriously injured and the inner region of his body was badly damaged, therefore, .he was not in a position to make any statement before the police. The learned counsel also submitted that the prosecution's own documents go to reveal that the deceased Ali Baig died at 8-00 a.m. on 8-2-1989. The claim of Ali Murad and Dil Murad, eye-witnesses of having witnessed the occurrence was vehemently repelled. In support of his contention that they had not witnessed the occurrence he made reference to the statement of Waris Ali, Constable P.W.2 who had stated that these two P.Ws. were not present at the spot at the time of occurrence. The recoveries of the weapons of offence according to the learned counsel had also not been proved as envisaged under section 103, Cr.P.C.

11. Conversely the learned A.A.-G. contends that the prosecution story is grained with truth because the deceased was seriously injured and he was seeing his death nearer so whatever he stated before the police in the form of F.I.R. was rightly treated as a dying declaration and was believed as true as the dying man cannot tell a lie. It was argued that the dying man has named the appellant being armed with a gun and a fatal shot has been attributed to him so the death sentence awarded to him be confirmed. Regarding Ali Murad and Dil Murid P.Ws. It was stated that they are the natural witnesses of the occurrence and cannot be treated as interested witnesses in the given circumstance of this case. It was lastly argued that no enmity, spite or ill-will of the P.Ws. and the deceased. has been highlighted by the defence against the appellant so the case against the appellant was beyond doubt.

12. We have given our earnest consideration to the arguments advanced by the learned counsel for both sides and have also gone through the evidence with their assistance very minutely. At the very outset we are of the view that the prosecution in this case has failed to prove the charge against the appellant beyond any shadow of reasonable doubt. We find that it is manifest from the post-mortem report that deceased Ali Baig was seriously injured and the inner region of his body was badly damaged so he was not in a position to make any statement before the police when the doctor himself has stated that there was a possibility of the injured going to the state of unconsciousness after receiving the injuries. We also find that the police even did not observe the rules required for recording the dying declaration in this case. Although much importance is not given to the statements of the constables who usually try to give concession to the accused person but in this case Waris Ali, Constable P.W.2 who took Ali Baig, injured from Rojhan Hospital to Dera Ghazi Khan Hospital stated that the condition of Ali Baig was not satisfactory as some times he could talk while at other time he did not talk, and the persons who had brought Ali Baig to Rojhan told him that they had not witnessed the incident and they had reached the occurrence after the gun report. The perusal of the inquest report Exh.P.J. and the injury statement Exh.P.I. show that these documents were not prepared on 8th of February, 1989 as they bear the date of 18th of February, 198.9 and an effort was made to change this date even. This fact also makes the prosecution story doubtful because these documents bear the signatures of the doctor dated 9-2-1989 when the inquest report was prepared on 18-2-1989.

13. The argument of the learned counsel for the appellant that Ali Murad and Dil Murad, who claim to be the eye-witnesses were not present at the spot finds support from the statement of Khadim Hussain P.W.10 who stated during his cross-examination that it was Khattu co-accused who told him the names of other co-accused. He further stated that he arrested the other co-accused on 26-2-1989. He also stated that he arrested Ayyub, appellant, Muhammad Ali and Gul Muhammad acquitted accused in some other case of Arms Ordinance but he cannot tell where and when they were arrested. Again the statement of P.W.2 Waris Ali can be referred when he states that the persons who had brought Ali Baig to Rojhan told that they had not witnessed the occurrence and had reached the scene of occurrence after the fire report and they are Ali Murad and Dil Murad P.Ws.

14. We have perused the statements of these eye-witnesses and find that Ali Murad P.W.6 had stated during his cross-examination that the thieves and dogs were at a distance of 1 or 1-1/2 acres when they came out of the house and seeing the accused and the dogs they assessed about the theft of the camel. It was also stated that it was dark night and the thieves had covered a distance of 3 or 3-1/2 acres when they approached them. This witness further stated that his father flashed the torchlight at once and in that light all the accused were identified. Khattu accused was caught by them at a distance of 3 acres A from their house. In the given circumstances of this case we are of the view that the eye-witness account rendered by these two eye-witnesses reflects doubts of their claim of having seen the occurrence.

15. We are of the view that the identification of the appellant during the dark night from a distance given by the P.Ws. was not possible. The so-called dying declaration, the medical evidence, the inquest report and the injury 8 statement are inconsistent with the version of the prosecution witnesses. Neither the motive has been proved satisfactorily nor the recovery of the incriminating weapons inspires confidence. We are not influenced with the arguments that the appellant was identified by the torchlight because in our opinion identification in the light of the torch is not considered a sufficient piece of evidence. Similarly we are not going to believe that in the condition in which the appellant and the co-accused were allegedly running after committing theft they would be talking to each other and, therefore, the appellant was identified by his voice. It is a settled law as pronounced by the Superior Courts that identification by voice has always been held doubtful. The -dying declaration in this case being a weaker type of evidence is also not relied upon.

17. Upon considering of the evidence and the circumstances we have reached the irresistible conclusion that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt. We, therefore, set aside the conviction and sentence awarded to the appellant and acquit him from the charge.

18. Resultantly the murder reference is answered in the negative and the appeal filed by the appellant is accepted. The appellant be released forthwith from the jail if not required in any other case. N.H.Q./A-547/L????????????????????????????????????????????????????????????????????????????????? Appeal accepted.