1978 PLP 38 (SCMR)

Date of hearing: 15th June 1977. NASIM HASAN SHAH, J.‑This is a petition for special leave to appeal directed against the judgment dated 14‑4‑1975, passed by the Lahore High Court, in Murder Reference No. 202/1973 and Criminal Appeal No. 776 of 1973.

2. The facts briefly stated are that on 3‑4‑1972 Manzoor Hussain deceased who runs a treat sleep a as returning from his said Shop with Rs. 2,150 (Rs. 350 being the proceed of sale and the remaining Rs. 1,809 taken from his uncle Dildar Hussain petitioner). At 7‑30 p.m. when he reached near the water channel in the area of Chak No. 300/J. D., he was confronted by Mohammad Ashraf alias Ghulam, Majid Ahmad and Ghulam alias Gama (respondents herein) and Abdul Hamid accused; the latter pulled him off his cycle while Ghulam Rasul and Majid Ahmad removed the sum of Rs. 2,150 from his dub. Mohammad Ashraf respondent allegedly took knife Exh. P. 5 from Ghulam Rasul and stabbed the deceased twice on the vital parts of his body; the latter fell down. The occurrence was stated to have been witnessed by Sardar Mohammad (P. W. 10) and Muhammad Shafi (a given up P. W). The motive alleged by the prosecution was that some two or two and a half months before the occurrence, owing to an altercation the deceased abused Muhammad Ashraf respondent which annoyed the latter. But the immediate cause for the incident in question was that on the day of occurrence the deceased, because he was counting cash, had refused to sell meat to Ghulam Rasul who at that time was accompanied by the other two respondents; all the respondents left the shop having threatened the deceased to avenge their insult.

3. Immediately after the occurrence the deceased was taken to Toba Tek Singh Hospital. Shortly thereafter it is stated that the relatives of the respondents also reached there with a view to persuading the deceased to compromise the matter and not report it to the Police. These efforts were not successful and the talks failed by 9 p.m. the same evening. However, police was not informed about the incident by any of the relatives of the deceased who were stated to be present with him at the hospital. It was only on the following day when the doctor informed the Police that the statement of the deceased was recorded at 6‑45 p.m. by to Head Constable. In the investigation that followed, the Investigating Officer recovered a knife (Exh. P. 5) stained with human blood, allegedly at the instance of Muhammad Ashraf respondent.

4. At the trial, all the accused denied the charges under section 302/ 394/34, P. P. C. and stated that they have been falsely implicated in this case. The learned Sessions Judge, though disbelieved the motive and recovery of knife, nevertheless convicted the respondents on the basis of tae dying declaration and part of the statement of Sardar Muhammad (P. W. 10). Accordingly Muhammad Ashraf was sentenced to death. Ghulam Rasul to imprisonment for life under section 302/34, P. P. C., while Majid Ahmad to seven years' R. I. under section 392, P. P. C.

5. The High Court, however, disbelieved the evidence of P. W. 10 in its entirety on the ground that he had made improvements in his statement and otherwise also his conduct was not above board, in that he failed to lodge any report at the Police Station which was close to the Civil Hospital, although he claimed to have witnessed the occurrence. The High Court also discarded the dying declaration on the ground that it was recorded 2.2 hours after the occurrence and during this period the relations of the deceased were with him in the hospital and could tutor him into concocting false story. Accordingly, the respondents were given the benefit of doubt and acquitted.

6. The learned counsel for the petitioner contended before us that the High Court should not have rejected the evidence of Sardar Muhammad (W. 10) because not only was he a chance witness, but also an independent witness. He submitted that although this witness was related to the deceased, that fact alone was not sufficient in law to discard his testimony unless it could be shown from the record that he bad some positive motive to falsely implicate the respondent. Moreover, his evidence was fully corroborated the dying declaration of the deceased.

7. Although there is some force in the above submission, we are still not inclined to think that the evidence of Sardar Muhammad could be relied upon or the purposes of basing a conviction under section 302, P. P. C., upon it. We ate inclined to agree wits the findings of the High Court regarding this witness that that there are material discrepancies in his evidence entitling the represents to be given the benefit of doubt. Undoubtedly, this witness had improved his story at the trial. His presence at the spot was also doubtful and the observation of the High Court that "this witness had made a cock and bull story in order to prove his presence at tar spot" is not without basis.

8. The counsel for the petitioner further contended that the High Court wrongly discarded the dying declaration because it was recorded at the time when the deceased was in a fit condition to make it and that the delay in informing the Police and recording the dying declaration was doused owing to the entreaties made by the respondents' side not to report the matter to the police so that a compromise could be arrived at.

9. We again find no force in the aforesaid submission. The talks for compromise had totally failed by 9 p.m. and there was no plausible reason to a plain the inordinate delay in informing the Police about the occurrence. In fact it was the doctor who, had eventually informed the police through a ruqqa sent by him. We are of the view that the High Court was right in not pacing reliance on the said dying delectation and discarding it. Besides the testimony of Sardar Muhammad (P. W. 10) and the dying declaration, there was no other evidence which could form the basis of conviction of the respondents and, therefore, we are of the vie that the High Court was perfectly justified in acquitting the respondents by giving them the benefit of doubt. This petition against their acquittal is accordingly dismissed. Petition dismissed.