P L D 1978 Lahore 826 (PLP)

SAEED-UR-REHMAN, J.

Muhammad Shafi (30) was tried for the murder of Muhammad Yusuf and convicted under section 302, P. P. C. and sentenced to death in addition to sentence of fine of Rs. 2,000 in default to undergo 2 years' R. I. In case of realisation of fine half of it was ordered to be given to the heirs of the deceased as compensation. The condemned prisoner has filed an appeal., The appeal and the connected murder reference. are before us.

2. About 8/9 years prior to this occurrence Mst. Muhammad Bibi alias Mandan mother of Muhammad Shafi accused was murdered. Ismail, Alam and Inayat were prosecuted but acquitted. They swore before Muhammad Shafi that they were innocent and in fact Muhammad Yusuf was the .murderer of- Mst. Mandan. Muhammad Yusuf tried to convince Muhammad Shafi about his innocence but he was not satisfied and nursed grudge against Muhammad Yusuf. Muhammad Shafi prior to this occurrence, tried to kill Muhammad Yusuf by throwing him into a well and was prosecuted under section 307, P. P. C. but acquitted. Muhammad Shafi again assaulted Muhammad Yusuf and was tried for the offence under section 324, P. P. C. but the dispute was settled through a compromise. He then joined the army and left the village and later became a deserter.

3. On 15-9-1973 at 11 a.m. Muhammad Yusuf deceased alongwith his family members was sleeping outside the kothas of his house to Chak No. 224/G. B. (Faisalabad). He woke up after the receipt of a knife blow in his abdomen and identified Muhammad Shafi as his assailant who inflicted two more blows with a knife hitting him 'on the arm and thigh. Mst. Saliman Bibi his wife, Maqbool his brother and Ghulam Muhammad his father also woke up and came near him upon which Muhammad Shafi ran away. Muhammad Yusuf was removed to the rural dispensary Chak No. 45 G. B., District Faisalabad, and reached there at 2-30 a.m. On 16-9-1973 Dr. Muhammad Iqbal, Incharge of the dispensary wrote a Ruqqa Exh. P. K. to the S. H. O., Incharge Police Post, Tarkhani informing him about the unsatisfactory condition of Muhammad Yusuf and asked him to come and do the needful. Muhammad Akhlas Khan S. I. Police Post, Tarkhani consequently arrived and after verification by the doctor that Muhammad Yusuf was in senses and was able to make his statement he recorded his statement Exh. P. F. at 4-15 a.m. and on its basis formal F. I. R. Exh. PF. I was recorded by Muhammad Siddiq Moharrir, Head Constable under section 337, P. P. C. at Police Station Samundri at 5-30 a.m. the same day. Muhammad Yusuf was removed to the District Head Quarter Hospital, Faisalabad where he expired on the night between 16th and 17th February 1973. Mukhtar Ali Head Constable prepared his injury statement and inquest report Exhs. P. N. and P. O. respectively. Abdul Majid Constable escorted the dead body to the mortuary. The Sub-Inspector arrived at the hospital and recorded the statement of prosecution witnesses in the hospital. Thereafter he proceeded to the place of occurrence. He collected blood-stained earth from the spot ride memo. Exh. P. C. and made it into a sealed parcel. He arrested the accused on 16-9-1973 and got recovered from his person blood-stained shirt Exh. P. 4 vide memo. Exh. P. D. He also recovered at his instance blood-stained knife Exh. P. 5 vide memo. Exh. P. E. and made it into a sealed parcel. Besides the Investigating Officer, Noor Ahmad and Asghar Ali (given up) witnessed the recoveries. Dr. Bashir Hussain Kahloon, Medical Officer District Head Quarter Hospital, Faisalabad conducted the post-mortem examination on the dead body of Muhammad Yusuf and found the following injuries on his person: (1) A stab wound 1' a ' abdominal cavity on the left side of abdomen at its upper part. (2) A stab wound 1 ' x 'abdomen deep 1J' below injury No. 1. (3) A stitched wound 1 ' long on the left thigh. (4) A stitched wound 1 ' long on the right of fore-arm. The stomach was cut through and through. The small intestines, large intestines and liver were cut. In has opinion the death occurred due to shock and haemorrage as a result of injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. Probable duration between injuries and death was within about 20 to 24 hours and between death and postmortem within about 10 hours.

5. According to the reports of the Chemical Examiner Exh. P. L. and Serologist Exh. P. M. the earth, the shirt Exh. P. 4 and the knife Exh. P. 5 were found to be stained with human blood. After the completion of the investigation the accused was challaned.

6. Muhammad Shafi accused pleaded not guilty and denied the allegations. He admitted that his mother Mst. Mandan was murdered and Yusaf, Ismail, Alam and lnayat were prosecuted but acquitted. He pleaded false implication on account of old enmity of Ismail and Manzur. He produced his earlier statement Exh. D. B. and a certified copy of judgment Exh.. D: C. in the murder case of his mother Mst. Mandan. He led no evidence in defence.

7. The trial Court relied on the evidence of the eye-witnesses and the dying declaration. It also accepted the evidence of the recoveries of incriminating articles as corroborative evidence.

8. It was contended by the learned counsel that the dying declaration Exh. P. F. is worthless as it was admittedly recorded on the dictation of P. W. 14 Muhammad Akhlas Khan, S. I. in the presence of Manzoor, Ismail and Allah Ditta who are inimical to the accused. He next contended that even otherwise the dying declaration was that of an interested person and nould not be relied upon without independent corroboration which was lacking. We have considered this aspect of the case. Undoubtedly there was previous enmity between the deceased and the accused. He could not, therefore, be called an uninterested person. In this view of the matter the submission made by the learned counsel finds support from the law laid down by the Supreme Court in the case of Sher Bahadur v. State (1972 S C M R 651) wherein it has been observed that the dying statement of an interested person also requires independent corroboration before it could be accepted. Moreover, the possibility that the dying declaration was prompted by others who were admittedly present at that time cannot be excluded. It would be obvious from the statements of P. W. 12 Ghulam Muhammad father and P. W. 13 Mst. Saliman Bibi, widow of the deceased made before the Committing Magistrate that Yusuf deceased gave statement according to the instructions of the `thanedar' Manzoor, Ismail and Allah Ditto. Both the witnesses tried to conceal this fact at the trial. The aforementioned admission of these witnesses before the Committing Magistrate not only discredit the dying declaration but also contradict P. W. 10 Manzoor Hussain, dispenser who stated that the `thanedar' arrived at the Dispensary after he concluded the dying declaration. In addition it may also be mentioned that the accused did not get an opportunity to cross-examine the doctor who had migrated to Bungla Desh. For the foregoing reasons we consider it. unsafe to rely on the dying declaration.

9. The next question for consideration would be whether the eyewitnesses could not be relied upon. It was a night time occurrence and the assailant who chose to commit crime at night time would normally try to conceal his identity. The eye-witnesses claim to have identified the accused when he attacked the deceased. According to them their `charpaees` were close to that of the deceased and that after hitting the deceased the accused fled away. The witnesses stated that the deceased was hit while he lay on that charpaee and consequently the bedding and the charpaee were smeared with blood. But the blood-stained bedding and the charpaee were not produced before the Investigating Officer. On the other hand the Investigating Officer took into possession the blood-stained earth from the courtyard of the deceased. In the absence of the recovery of the blood-stained bedding and charpaee it has become doubtful whether the deceased was hit while he lay on the charpaee. It is also supported by the statement of P. W. 13 Mst. Saliman Bibi made before the Committing Magistrate; she had stated that when she woke up she found her husband and the accused grappling with each other behind the cattle. This admission, therefore, contradicts the prosecution case. It is further supported by the statement of P. W. 12 Ghulam Muhammad who stated that he was sleeping at a distance of 24 karams (about 16') from the place where deceased was sleeping and that the cattle had been tethered at a distance of 4/5 karams (about 22 to 27 ft.). According to the site plan Exh. P. A/1 the blood was recovered from behind the manger at a distance of 36'. This also contradicts the prosecution case.

10. We do not propose to rely on the recovery of the blood-stained knife at the instance of the accused from his house, because it does not appeal to reason that an assailant who would commit a crime at night time to conceal his identity would keep the blood-stained weapon in his house. There was enough time with the accused to wash the blood away. Even otherwise the recovery is not satisfactorily proved because out of the two witnesses only P. W. 11 Noor Ahmad was produced who contradicted himself by stating before the Committing Magistrate that knife was lying on the table before the police but at the trial he stated that it was got recovered by the accused from a box. Suffice it to say that this witness tried to conceal his strained relations with the accused by denying the fact that he had thrice appeared as a witness against the accused which fact he had admitted before the Committing Magistrate. For the foregoing reasons we are not satisfied with the prosecution case; giving the appellant the benefit of doubt, we accept the appeal and acquit him. . The sentence of death is not confirmed.