P (PLP)

ASLAM RIAZ HUSSAIN J.-This appeal is directed against the judgment of the Lahore High Court, dated 10-2-1977, whereby the appeal of Muhammad Ayyub appellant in a case under section 302, P. P. C. was dismissed and his conviction and sentence affirmed.

2. The occurrence in this case took place at 10 a.m. on 14-11-1974, near the shop of Ali Bahadur in Sarafa Bazar, Jhelum City. The F.

1. R. in the case is based on the statement of the deceased, which was recorded by Sabir Hussain, A. S. I. (P. W. 13) at 2 p.m. on the same day in the hospital where Muhammad Aslam (deceased) had been taken for treatment. The prosecution story as narrated by the deceased is that :

"Today at about 10 a.m., I alongwith Iftikhar Ahmad alias Babu son of Jalal Din, Muhammad Ajaib son of Nizam Din, caste Shaikh, residents of Bagh Mohallah, Jhelum, Bazar Sarafan, was going to the river road. I and my companions bad reached in front of the shop of Ali Bahadar, when Muhammad Ayyub alias Nikka was coming armed with a chhuri shouting lalkaras. With the intention to kill me he attacked me. He gave the first chhuri blow in my abdomen on the left side. I raised hue and cry. The above-mentioned gave the second chhuri blow on my left arm. I fell down. Messrs Abdul Shakoor son of Rehmatullah, Mukhtar Ahmad son of Abdul Ghafoor, Caste Shaikh, residents of Bagh Mohalla, Jhelum, also came to the spot. They witnessed the occurrence. They took me to the Civil Hospital, Jhelum, immediately on a tonga. After medical examination the doctor admitted me." The motive of occurrence as mentioned in the statement of the deceased produced above is stated to be that about 8/9 months prior to the occurrence, Muhammad Aslam (deceased) stabbed the appellant with a knife and a case had been registered which was still pending trial. The accused was arrested on the 20th of November, 1974 and blood-stained knife (P. 2) was recovered at his instance. The blood thereon was subsequently, on examination by the serologist, was found to be of human origin.

3. At the trial the prosecution produced Iftikhar Ahmad (P. W. 10), Muhammad Ajaib (P. W. 11) and Mukhtar Ahmad ~P. W. 12), as eyewitnesses in support of its version. Abdul Shakoor another eye-witness mentioned in the F.

1. R. was, however, given up as being unnecessary. The accused pleaded innocence and led no evidence in his defence. Their testimony was supported by the recovery of the blood-stained knife P. 2 and the injuries found on the person of the deceased.

4. The learned trial Court believed the prosecution evidence and passed the judgment dated 31-1-1976. It convicted Muhammad Ayyub, appellant, under section 302, P. P.,C. and sentenced him to death and a fine of Rs. 5,C00 and further R. 1. for one year in case of default in payment of fine. It also sentenced him six months' R. I. under section 13 of the Arms Ordinance. He filed an appeal before the High Court, which as already mentioned above, was dismissed and the death sentence was confirmed. The appellant then filed a petition for Leave to Appeal through Jail, whereupon leave was granted to him on 17-8-1977 to examine the weight to b!-: attached to the evidence in the light of the following facts : (i) that although two of the witnesses mentioned in the F. I. R. were friends of Muhammad Aslam (deceased) and the other two were close relatives but none of them went to the police station to lodge the report ; (ii) that the eye-witnesses are chance witnesses ; (iii) that two friends, namely, Muhammad Ajaib and Iftikhar P. Ws. did not accompany the deceased to the hospital. (iv) that the dying declaration made by Muhammad Aslam (deceased) was neither recorded by the doctor nor attested by him or his Compounder, as having been recorded in their presence ; and (v) that the knife (P. 2) was recovered from the accused after 6 days of the occurrence, although it is not possible that any one could have kept such a knife with him for so many days.

5. We heard the learned counsel for the petitioner and gone through the impugned judgment as well as the entire evidence on the record, in the light of the grounds on which leave was granted. We notice that Iftikhar Ahmad (P. W. 10) and Muhammad Ajaib (P. W. 11) were never asked, durin the cross-examination, as to why they had not gone to the hospital with Muhammad Aslam (deceased) who was taken to the hospital by Mukhta Ahmad (P. W. 12) and others in a tonga. Had they had been asked, they might have given a very satisfactory and plausible explanation, for example that there was no more space in the tonga or that they had rushed to inform the father and other relatives of the deceased about the incident. As already mentioned Mukhtar Ahmad P. W. accompanied Muhammad Aslam (deceased) to the hospital and the remaining eye-witnesses, namely, Iftikhar Ahmad and Muhammad Ajaib, who are very young boys being 18 and 19 years respectively, were probably not aware that they were required to rush to the police station to report the matter at once. They must have been stunned by the incident and their reaction probably was rush and to inform the father and other relatives of the deceased about the occurrence. Had they been asked during the cross-examination they also might have given a good reason for not going to the police station.

6. As for the authenticity of the dying declaration, it is an admitted fact that Muhammad Aslam (deceased) survived for 3 days after the occurrence and himself made the statement which formed the basis of the F.

1. R. i this case. It is also admitted that this statement bears his signature, the genuineness whereof has not been disputed by the defence. As such the omission of the investigating officer to obtain the doctor's attestation thereon does not cast any adverse reflection on the veracity of the dying declaration.

7. As to the blood-stained knife it has not been stated in the evidence that it was smeared with blood all over. The accused may have washed it but some blood always remains in the cravices which can be scrabed and sent for examination. We are of the view that it is not all together impossible that the accused may have kept the knife with him. In any case the testimony of the eye-witnesses who had not been alleged to have any enmity whatsoever) with the accused is, by itself, sufficient to form the basis for appellant's conviction.

8. Having gone through the evidence on the record we are inclined to agree with the view taken by the High Court that : "In a single accused case the eye-witnesses in such a situation could no be expected to substitute the present appellant for the actual assailant. For false substitution or implication, there must be very strong motive on the part of the eye-witnesses which is missing in the instant case. It is not denied that now-a-days in a case of single culprit substitution i is very rare phenomenon. It is not denied that at such time of the day and place of occurrence the assailant whoever he may be, could not remain unidentified. If the appellant had really been substitute for the actual murderer, the appellant should have raised hue and cry at the earliest before the appropriate authority and this fact could easily be verified during the investigation. Even the deceased in the dying declaration (Exh. P. G.) has mentioned only the name of the present appellant as :he person who inflicted injuries to him. Keeping in view the nature and location of the injuries, it can be safely inferred that the deceased must have noticed and identified his assailant. He could not, therefore, make any mistake about his own murderer. 1f the injuries were really caused by some other person, the deceased or the eye-witnesses could not have any sympathy with that person and allowed him to go scot-free and instead implicated the present appellant . . . . . . . . "

9. In view of the above discussion we find no force in this appeal which is consequently dismissed. s. A. H. Appeal dismissed