P L D 1974 Karachi 1 (PLP)

(2) Incised wound lower chest, in abdomen 2 " x below last rib, at the level of mid‑axillary line stitched and had become septic with whitish from coming out, and partly healed 1 " x 1/3" x cavity deep. (3) A big incised wound on the left sub-costal region transversely, stitched and partly healed, from imblical to left side 9 long with a rubber tube on left side (wound of operation). (4) A small incised wound right side abdomen, 5" on the right side, from the mid line " x " for rubber tube (operation). (5) Incised wound left lower leg medially 1 above ankle joint, 1 " x " stitched for intraremous transfusion by open method. According to the Medical Officer, the injuries were ante‑mortem in nature and had been caused by a sharp‑edged weapon such as a knife. The death had occurred due to Texainia and Paritonitis caused by the stab wound in the abdomen, causing gut perforation. The Injury No. 2 was sufficient in the ordinary course of nature to cause death.

6. The First Information Report of the incident was lodged by Dur Muhammad himself, soon after the incident. In this he had ascribed the injuries to the appellant, while sitting in the Cafe along with his relation P. W. Soomar. A few days later, a further statement was recorded by the Sub‑Inspector under the provisions of section 162 of the Code of Criminal Procedure. In this he furnished the motive, mentioned the attack, and what had transpired between the two of them, a day earlier. Looking to proviso 2 of section 162 of the Code of Criminal Procedure, even this statement which deals with the cause and circumstances which resulted in his death, like the contents of the F. I. R., will be treated as dying declaration.

7. Mr. Shaukat Hussain Zubaidi, learned counsel for the appellant, contended that as, at the time of the recording of the statements Dur Muhammad was not under expectation of death, the same cannot be treated as dying declarations. In support of his contention, he cited the case Hayatullah v. The State (1969 P Cr. L J 724). In the precedent case, the A. S. I. had stated at the trial that the condition of the deceased was not serious when the F. I. R. was recorded. It was observed that‑-- "Sanctity is normally attached to a dying declaration, because it is assumed that when a person is face to face with death, he would like to make peace with God and would not tell lies. In this case his condition, as deposed by the A. S. I., was not serious an therefore the F. I. R. cannot be treated as a dying declaration." With utmost respect, I will venture to say that the proposition as put forward, is at tangent with the proviso to section 32(1) of the Evidence Act, which reads as under:‑ "Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."

8. Otherwise too, the Sub‑Inspector has stated that on the very day of the incident he had gone to the hospital and found that the condition of the patient was bad. The doctor did not permit him to make any inquiries from the patient till the next day, and even then had told him that he apprehended his death, though no such certificate was issued. Further it is to be seen that the incident had taken place in broad daylight when the deceased had a clear opportunity of recognizing the assailant. It is in evidence that he had named the appellant as the assailant while still inside the cafe and later mentioned his name in the F. I. R.

9. According to Mr. Monir in "Principles and Digest of the Law of Evidence", Fourth Edition, p. 227‑-- "A dying declaration which names only .one person, and where the killing took place under circumstances where there could be no doubt that the dying man identified his assailant, is the very strongest possible form of evidence." As the law stands, conviction can be based on such a declaration alone.

10. Then there is the evidence of P. W. Soomar. He has stated that he was with Dur Muhammad at the Cafe for taking tea. The appellant had turned up there and asked from Dur Muhammad as to why he had made the application. Dur Muhammad denied the charge but that did not satisfy the appellant. He abused Dur Muhammad and struck a knife blow on the stomach. Dur Muhammad tried to resist and was given another knife blow on his left arm. He caught the appellant but the latter succeeded in extricating himself and took to his heels with the knife. He mentions that Ayub had immediately gone to the counter and inquired from the Seth if he had witnessed the happenings. Then he had taken Dur Muhammad to the Kharadar Police Station, and from there to the Civil Hospital. He also mentions the incident between the appellant and the deceased Dur Muhammad, the day before, and also furnishes the motive for the murder. He has denied his relationship with the deceased, but that cannot pass muster in view of the fact that it is so ad Knitted by the deceased in the F. I. R. Nothing worthwhile could be elicited from him in the cross -examination. However, on his own showing, be was examined by the police three days after the incident. The Investigating Officer, in his deposition remained totally reticent as to when he had examined this witness. However, Soomar has clearly stated that he had been to the Police Station with Dur Muhammad, and bad brought back the blood‑stained clothes of the deceased from the Civil Hospital. He has further stated that he had shown the vardat to the Sub‑Inspector. This is corroborated by the Sub‑Inspector who has further stated that he had arrested the appellant on the pointation of Soomar. Even if his statement was not recorded on the day of the incident, nothing will turn on the same because his name is to be found in the F. I. R., and his presence is also admitted by Ali Naqi, the proprietor of the Cafe, Issa son of Allah Dino, and Issa son of Abbas; the last mentioned witness has it, that he was on the jeep outside. I am clearly of the opinion that it is safe to rely on his testimony.

11. Ali Naqi has stated that he had heard the commotion and seen the appellant running away with a knife. Dur Muhammad had come to him with Soomar, bleeding from his injuries in the stomach, and told him that he had received the injuries from the appellant who had run away. He had further stated that the appellant in the Court was the same person. However he conceded that he had stated at the Court of Inquiry that he did not know the appellant at all. No attempt was made to establish that it was otherwise. If the appellant was not known to him, then in the absence of an identification test, his evidence in regard to the identity of the appellant would lose all its significance. However, he admits that soon after the incident, Dur Muhammad had come to him at the counter and mentioned the name of Ayub as the assailant. It will corroborate the dying declaration and the version of Soomar, at least to that extent.

12. The next witness to consider would be Issa son of Allah Dino. At the trial he admitted his presence at the Cafe and Dur Muhammad receiving knife injuries there, but showed his ignorance about the identity of the assailant. He was cross‑examined by the learned Public Prosecutor and confronted with certain passages of his statement under section 164, Cr. P. C. He however admitted that he had deposed at the Court of Inquiry, that the appellant had come to the hotel and after a talk with Dur Muhammad, had stabbed him in the abdomen and given a further blow in the arm. He further admitted testifying there, that Dur Muhammad had gone to the Seth sitting at the counter, and told him that he had been stabbed by Ayub. However, he maintained that he had said so because of Police pressure. His statement at the Court of Inquiry was transferred on the record under section 288 of the Code of Criminal Procedure and was acted upon by the learned trial Judge. Mr. Zubaidi, learned counsel for the appellant, argued that the learned Additional Sessions Judge was in the wrong, to have preferred his statement at the Court of Inquiry‑he was a speak‑easy witness, and in view of the contradictory statements, his evidence should have been totally discarded. He sought support from the case of Alim v. The State (P L D 1967 S C 307). I agree with the learned counsel that the statement made by a witness at the Court of Inquiry which is in conflict with the statement at the trial, cannot be mechanically acted upon. In a situation like this, the Court has to exercise its discretion and determine the case in all its aspects whether the earlier statement is to be preferred. Thus viewed, the first thing to note is that the incident had taken place in broad day light and the witness on his own showing was not sitting very far away from the table of Dur Muhammad. There is no indication that his version of the incident at the earliest stage, was any different from the one furnished at the Court of Inquiry. He never entertained any doubt about the identity of the appellant in his statement under section 164, Cr. P. C. or at the Court of Inquiry. He had no bias against the appellant and no leaning toward the deceased. His version therefore at the Court of Inquiry was properly relied upon (See Abdul Majid v. The State (P L D 1959 S C (Pak.) 486) ).

13. Issa son of Abbas admitted his presence in the Cafe, 3 to 4 tables away from Dur Muhammad. He mentions the attack on Dur Muhammad and the latter going to the Seth thereafter, but stops short with that much. He was cross‑examined by the learned Public Prosecutor, and confronted with certain passages of his statement made under section 164 of the Code of the Criminal Procedure. That will not be substantive evidence. He will therefore be not of much assistance to the prosecution.

14. Then there is the evidence of motive, referred to earlier. This has been supported by Soomar, Murad Ali and A. S. I. Yousuf Shah. The record shows that an inquiry in regard to it was pending with the Police authorities at the relevant time. The further statement of the deceased mentions some further unpleasantness between the parties, but there is no mention of it by any other witness. It was the suspicion entertained by the appellant, which led to the tragic result.

15. Lastly, there is the evidence of the discovery of a blood‑stained knife, by the appellant. Ismail, the mashir, however has not supported the prosecution case. He has stated that he was taken by a policeman to an office where he was shown a knife. The policeman had told him that it was secured from the appellant who was present there. He did not notice any blood thereon. Neither he was cross‑examined by the learned Public Prosecutor, nor the other mashir was examined. The statement of the Sub‑Inspector also shows some discrepancy about the time of the arrest of the appellant. Under these circumstances, it will not be safe to rely on this piece of evidence.

16. In view of the foregoing discussion, there can be no doubt that it was the appellant who was the author of the crime. His conviction under section 302, P. P. C. is therefore not open to any exception. However, it was a random meet, without any element of deliberation or design. Issa son of Allah Dino at the trial talked of a fight, but in his statement at the Court of Inquiry transferred to the record, he had mentioned that there was a talk between the appellant and the deceased. He was at some distance. So was Ali Naqi. The deceased and Soomar alleged that the appellant had abused. It cannot be ruled out that some incivilities were, bandied between the two of them.

17. I am, therefore, of the opinion that the lesser punishment under section 302, P. P. C. would meet the ends of justice. In the result, the sentence of the appellant is altered to transportation for life, and the reference made by the learned Additional Sessions Judge is not accepted. With this modification, the appeal stands dismissed. FAKHRUDDIN G. EBRAHIM, J:‑I agree. S. G. D.