1992 P Cr (PLP)

JUSTICE SAAD SAOOD JAN (CHAIRMAN).

The appellant, Muhammad Kabir alias Kala, alongwith his brother Kamal Khan alias Maloo and one Allah Dawaya, was tried by the Special Court for Speedy Trials, Multan, on charges under section 302, read with section 34, sections 459, 460 and 382, Pakistan Penal Code. The learned Court acquitted Kamal Khan alias Maloo and Allah Dawava of all the charges against them; it convicted the appellant of offences under sections 302, 459 and

382. For the offence under section 302, it sentenced him to death and payment of fine in respect of the other two offences, it sentenced him to suffer rigorous imprisonment for a period of 10 years, separately under each head, in addition to payment of fines. The appellant has filed this appeal against his convictions and sentences. The State has also preferred an appeal against the acquittal of the co-accused which has been separately disposed of. .

2. On the night of 2-8-1991, Hafiz Muhammad Yousuf, deceased, was sleeping in the courtyard of his house alongwith the members of his family in village Sheikh Naseer of District Bahawalpur. At about mid-night his son. Muhammad Iqbal (P.W.12) heard some noise coming from one of the rooms. He woke up the deceased. They both went towards the backside of their house and saw three strangers there. They challenged the strangers. One of the strangers was armed with a shot-gun. He twice fired at the deceased who was hit in the region of the chest and abdomen. The strangers then ran away. On the alarm raised by Muhammad Iqbal (P.W.12) a number of persons gathered at the spot. They took the deceased inside the house. Muhammad Iqbal (P.W.12) found that the back-wall of one of the rooms had been broken into and the household goods were lying scattered all over the floor. On checking he found that some pieces of cloth and an amount of Rs.1,600 had been stolen. 3.Soon after the occurrence the deceased was taken to B.V. Hospital at Bahawalpur where he was examined by Dr. Muhammad Hanif (P.W.10) on the following morning at 8-25 a.m. The deceased had two wounds of entrance and one wound of exit, caused of gunfire, and three other lacerated wounds. He died in the hospital on 5-8-1991 at about 5-00 p.m.

4. The occurrence was reported at the Police Station, Khairpur Tamewali at 6-05 a.m. on 3-8-1991 by Muhammad Iqbal (P.W.12). It may be mentioned that the said Police Station was 20 kilometres away from the village of the deceased. The case was mainly investigated by Inspector Madad Hussain (P.W.13) who was at the relevant time posted as Station House Officer. He arrested the appellant on 27-9-1991. On 2-10-1991 the appellant was alleged to have helped him in the recovery of four pieces of cloth stolen from the house of the deceased.

5. At the trial, the appellant pleaded not guilty to the charges against him. He denied that he had broken into the house of the deceased or fatally wounded him by gunfire or stolen any property from there: He alleged that it was a blind murder but on account of the local party faction he had been falsely implicated. He did not lead any evidence in his defence.

6. There were two eye-witnesses of the occurrence, namely, the deceased and Muhammad Iqbal (P.W.12). Admittedly, Muhammad Iqbal was unable to recognise any of the strangers that he and his father had seen at the back of his house, Thus, when he lodged the F.I.R. he did not give the name of any of the strangers nor did he provide their description. Apart from that, after the arrest of the appellant no identification parade was held. Thus, so far as the alleged involvement of the appellant in the occurrence is concerned the statement of Muhammad Iqbal (P.W.12) does not help the prosecution.

7. Zahir-ud-Din (P.W.8) claimed that he lived at a distance of one square from the basti where the house of the deceased was located. According to him, on the night of occurrence he and his nephew Riaz heard the report of gun-fire. Upon this they started for the basti where the firing had taken place. On the way they saw three persons one of whom was the appellant. When they tried to apprehend the appellant the latter threatened to kill them.

8. The evidence of Zahir-ud-Din (P.W.8) is entirely unconvincing. On his own showing, he reached the scene of occurrence before Muhammad Iqbal (P.W.12) left for the Police Station to lodge the F.I.R. If he had in fact recognised the appellant it would have been just natural for him to inform Muhammad Iqbal (P.W.12) about the identity of one of the culprits. Thus, while dictating the first information report Muhammad Iqbal (PW-12) would have been in a position to name at least the appellant as one of the participants in the occurrence. I am therefore not prepared to believe the story of this witness that he had seen the appellant among those whom he had met on the way to the basti of the deceased.

9. Another piece of evidence upon which the prosecution relied in support of its allegations against the appellant was the dying declaration allegedly made by the deceased. His dying declaration was recorded by Inspector Madad Hussain at 11-00 a.m. on 5-8-1991. It may be mentioned that the deceased died on this very day at 5-00 p.m. Before recording the statement Inspector Madad Hussain had obtained a certificate from the doctor to the effect that the deceased was in a fit condition to make the statement. The relevant portion of the statement reads as follows: It may be mentioned that at the time when this statement was recorded the deceased was lying in a hospital at Bahawalpur, which was the District Headquarters. It is not clear why Inspector Madad Hussain did not seek the services of the Magistrate to record the statement of the deceased. However that may be, it is a very detailed statement following the format of the first information report. It is somewhat surprising that a man who lay seriously wounded would make such a detailed statement only about 6 hours before his death. It seems too much of a coincidence that the language used in it is in most part the same as employed in the first information report.

10. It appears from the statement that the deceased became unconscious immediately after being hit and that he did not regain his senses till the day when his statement was recorded. In this regard, his statement stands contradicted by the doctor who examined him when he first arrived at the hospital. This examination, as already mentioned, took place on the morning of 3-8-1991 at 8-25 a.m. According to the doctor the deceased was in his senses at the time of the examination. I see no reason to disbelieve the statement of the doctor particularly when the learned Public Prosecutor did not care to challenge his statement through re-examination. In the circumstances, the case of the prosecution that the deceased was unable to name the appellant as one of the culprits for two days on account of unconsciousness seems to be without any substance.

11. The appellant belonged to Hameedabad which was just across the canal from Sheikh Naseer. In fact both the villages had a common Union Council. Muhammad Iqbal (P.W:12) who was brought up in Sheikh Naseer, would ordinarily be acquainted with the residents of the two villages. At the relevant time the light could not be so bad as according to the prosecution the deceased was able to recognise the appellant. It is therefore surprising that Muhammad Iqbal (P.W.12) who was just behind his father was unable to pick out the appellant from among the three strangers.

12. A dying declaration is a substantive piece, of evidence. If the Court is satisfied about its genuineness it can be acted upon without any corroboration. Some of the tests for determining its genuineness are: whether it intrinsically rings true; whether there is no chance of mistake on the part of the dying man in identifying or naming his assailant or whether it is free from prompting from any outside quarter and whether it is consistent with the other evidence and the circumstances of the case. After considering the ambient circumstances I have lingering doubts if the deceased was able to identify the appellant and I am also not sure if he had in fact made the said statement before the Inspector.

13. It was also the case of the prosecution that some of the pieces of cloth stolen from the house of the deceased were recovered from the possession of the appellant. It is to be noticed that the pieces were all unstitched. There is nothing on the record to show that they were of so unusual a pattern or they bore any distinguishing mark that one could with complete assurance say that these were part of the articles stolen from the house of the deceased.

14. For the reasons stated above I am of the view that the-evidence on the record is entirely insufficient to establish that the appellant was one of the strangers who killed the deceased, broke into his house or committed theft. I would therefore set aside his convictions and sentences and acquit him of the charges against him. He shall be set at liberty forthwith if not required in any other case. N.H.Q./44/SAC Appeal allowed.