1983 PLP 806 (SCMR)

3. The deceased remained in hospital under treatment. He was medically examined by Dr. Abdur Rashid Khan, P. W. 9 on 28‑4‑1973 at 7‑45 a.m. who found a stabbed wound 1.1/4" x 1/2" x going inside the left outer side of chest in the 6th left inter‑costal space, and a superficial incised wound 1.1/4" x 1/8" x 1/8" on the outer side of left arm upper part. He (deceased) died on 1‑5‑1973 in the hospital and the same doctor performed his post‑mortem examination and found the same wounds in stitched condition. The wall of thorax was found pierced at the level of 6th left inter costal space. On examination the pleura of left lung penetrated pleural cavity full of blood on the left side according to the doctor the death of the deceased was due to shock from bleeding inside the left lung and respiratory embarrass ment caused by Injury No. 1.

4. The accused was arrested later on. The same doctor examined him on 11‑5‑1973 at 1 p.m. and found a semi‑healed incised wound cutting half of the nail near its tip and going in front of both‑ sides. On X‑ray examination, it it was found that a separate piece of bone was lying under the wound. According to the doctor the bone was cut by the incised wound and the injury was grievous in nature caused by sharp‑edged weapon within a period of about fourteen days.

5. Eye‑witnesses examined in the case are Nur Hussain, P. W. 8, Muhammad Sarwar, P. W. 9 and Nazir Ahmad, P. W.

10. The learned Sessions Judge, Multan, vide his judgment dated 24‑4‑1975, acquitted Mukhtar and Sabir, giving them benefit of doubt, but convicted Mumtaz appellant, under section 302, P. P. C. as mentioned in the foregoing paragraph, and sentenced him to death and to pay a fine of Rs. 5,000 or two years' R. I. in default. Mumtaz Ahmad, accused/appellant filed an appeal against his convictions and sentences in the Lahore High Court, while Ali Hussain, father of the deceased, Muhammad Afzal, preferred a Revision Petition No. 37/1976, challenging the legality and validity of the acquittal of Mukhtar and Sabir, accused (respondents Nos. 1 and 2 herein). XIII these matters were heard together by the High Court. In appeal and confirmation proceedings, the convictions and sentences awarded to Mumtaz accused/appellant were upheld by the learned Division Beach of the High Court vide its judgment dated 9‑3‑1976, but the revision petition against the acquittal of Mukhtar and Sabir, respondents Nos. I and 2, was dismissed for the reasons recorded by the learned Judges in the Murder Reference concerning Mumtaz the accused; appellant.

6. Leave was granted by this Court, vide order dated 17‑5‑1978 to' re‑examine the entire evidence recorded in this case, and also in Petition No. 168/1976 directed against the acquittal of Mukhtar and Sabir so as toy examine whether the Courts below were right in rejecting the dying statement as well as the oral evidence regarding the role assigned to these two respondents in the incident resulting in the death of Muhammad Afzal.

7. Nur Hussain, P. W. 8 stated that he, after having his morning prayer offered in the mosque, came out and met Ali Muhammad, P. W. and they both started towards the house of Ali Hussain, P. W. and when they had gone, about 18/20 karams they saw Mumtaz appellant and Sabir and Mukhtar acquitted accused talking to Muhammad Afzal, deceased and telling him not to visit the house of Ch. Barkatullah, M. N. A. The deceased refused to do so whereupon Mukhtar and Sabir caught hold of him while Mumtaz inflicted two stab wounds with a knife on the left flank and biceps. Mian Nazeer and Sarwar were also there and they witnessed the occurrence. The deceased, after sustaining the injuries, fell down while the accused decamped. He tried to a, pretend Mumtaz appellant and caught hold of him from his Wrist and snatched the knife P. 1 from him but the accused/appellant succeeded in making good his escape. While snatching the knife, the thumb of the accused was injured with the same knife. A cot was brought, injured Afzal was placed on it and was carried to the hospital. He produced the blood stained knife to the police which was taken into possession vide Memo. Exh. P. C. and made into a sealed parcel. Muhammad Sarwar, P. W. 9 and Nazir Ahmad, P. W. 10 also supported the prosecution version as given by Nur Hussain, P. W. 8.

8. Muhammad Rashid, S. I. P. W. 11 was posted as incharge of police post City Khanewal. He was on gamut at Chowk `T' Khanewal at about 7‑30 a.m. when Ali Hussain, father of the deceased met him and handed over to him medico‑legal report Exh. P. W. He then proceeded to the hospital, lying at a distance of about two furlongs. On reaching the hospital, he sent a constable to contact a Magistrate for recording the dying declaration of Muhammad Afzal, deceased as his condition was stated to be precarious by the doctor but no Magistrate was available. He then requested the doctor to record the dying declaration but the doctor said that he should himself record the statement. Therefore, after having enquired from the doctor about the possibility of the injured Afzal making the statement, and having received an answer in the affirmative he recorded the statement Exh. P. D. The doctor gave a certificate Exh. P. D./3 on the application .made by him seeking permission to record the dying declaration. The statement was read over to the injured Afzal (deceased) who signed it in token of its correctness. After having recorded the dying declaration, he got report from the doctor Exh. P. D./2 and sent the statement to the police station for regis tration of a case. The prosecution closed its case after having given up the unnecessary witnesses.

9. The accused were examined. Mumtaz appellant denied' the charge and stated , that the witnesses were closely related to the deceased. He also denied the snatching of a knife from him by Nur Hussain ; and the motive was also denied by him. Regarding the injury sustained by him, he stated that it was crushed in the door of a car while boarding it. He denied having any enmity with the deceased and stated that on the day of occurrence he had gone to attend his office where he came to know, that he has been falsely implicated in a case under section 307, P. P. C. alongwith his brother Mukhtar (the acquitted accused). He moved an application for pre‑arrest bail in the High Court ‑but he was directed to approach the Court of Session, which, however, rejected his application and, therefore, he surrendered himself to the police: He added that Khadim Hussain', uncle of the deceased had cooked up this cage against him. The other two accused/ respondents denied the charge totally.

10. Learned counsel for the appellant has taken us through the entire evidence and has made a grievance of the fact regarding recording of the dying statement ‑Exh. P. D. of the deceased. His argument is that the deceased was not in a fit condition to make any such statement ; that the very narration and language of the dying statement is not that of the deceased but of a police officer. Moreover, it has been recorded under section 164, Cr. P. C. which would normally apply to the recording of statements of the witnesses by a Magistrate. In this connection he also referred to the supplementary statement of the doctor recorded by the learned Sessions judge on 20‑1‑1975. In the first lines of his statement the doctor stated that Injuries Nos. 1 and 2 found by him on Muhammad Afzal deceased could be caused by the knife P. 1 shown to him today and he was present whets. the statement of the deceased was recorded in the hospital by the S.1. and he had put his signatures on the statement of the deceased. In cross‑examination the doctor stated "when on receipt of this information I reached the hospital, about five hundred persons had already collected there. By the timer the deceased had been placed in the operation theatre. Even the operation theatre was. packed with people". The learned counsel, with reference to the statement of the doctor, referred particularly the following portions of his statement "When I was giving the treatment to the deceased in the hospital, he did not talk because he was virtually senseless due to extreme shock. When I took the deceased to the Ward from the operation theatre, most of his relations were present . . . . . ." "The deceased, during this period, had been talking but I do not remember the nature of the talk. The deceased was talking distortedly, I mean that ‑he was talking incoherently. At least I could not make any heed or tail out of what he was saying. I think the subject of the talk was the occurrence. At least I did not hear the deceased mentioning the name of any assailant. When the S. I. came back to the hospital, even then Ward was packed with people and they did not vacate it in spite of the fact that I asked them to do so .. . ."

11. We have carefully gone through the entire evidence and find that in the very opening lines of his statement the doctor has stated that he was present when the statement of the deceased was recorded in the hospit4l by the S. I. and he had put his signatures on the statement of the deceased. Again, in the cross‑examination the doctor said that during the interval the deceased had regained his senses and had started talking, and the S. I. had inquired from the deceased as to whether he was feeling alright and when ‑ the deceased told him that be was quite alright the S. I. inquired from him whether he could record the statement of the deceased. The doctor permitted him provided the people left the place whereupon all the persons left the Ward except Mr. Shahid Qadri and Mr. Arif Advocate and in their presence the S. I. recorded the statement of the deceased and as far as he remembered, the deceased made the statement in a narrative form and he was not put any questions ; and he did not think that during the course of recording the statement of the deceased Mr. Shahid Qadri and Mr. Arif Advocate were prompting him. Thus. the doctor's statement clinched the matter that it was not a touched up statement of the deceased ; that it was made without any tutoring or prompting by anyone including Mr. Shahid Qadri and Mr. Arif Advocate. It has also not been made clear anywhere as to why Mr. Shahid Qadri and Mr. Arif Advocate should be interested in making a fuse case against the accused/appellant.

12. The learned counsel then referred to another fact i.e. regarding the medico‑legal report which, according to the doctor, he had handed over to the S. I. in ‑the hospital on his arrival whereas the S. I. Muhammad Rashid stated that he received a copy of the medico‑legal report while he was on gasht at `T' Chowk, Khanewal City. We are not impressed with this argument because it is nobody's case that there was only one medico legal report prepared by the doctor. Normally the medico‑legal report and its carbon copy are prepared at one and the same time and the possibility of the doctor handing over one copy to the father of the deceased complainant Ali Hussain, in no way Militates against the prosecution case. Learned counsel then levelled serious criticism against the statement of Nur Hussain, fl. W. 8, Muhammad Sarwar, P. W. 9 and Nazir Ahmad, P, W. 10.

13. Regarding the first mentioned witness, the learned counsel contended that Nur Hussain is resident of Chishtian Town and had no reason to be present in Khanewal at the time of occurrence he is merely a chance witness and, therefore, his statement is not worth reliance. He is also related to the deceased, as his cousin's sister was married to Ali Hussain, the father of the deceased. In cross‑examination this witness had stated that he had come from Chishtian to Khanewal before the day of occurrence to see Ali Hussain and it would be a strange coincident, the learned counsel submitted, that the witness should be present in Khanewal at 6 a.m. to witness the occurrence. He also claims to have snatched the knife from Mumtaz accused/appellant. Statement of this witness was further assailed on the ground that he is a stock witness of the police and had appeared in 7 or 8 cases for the prosecution, 3 of which were murder cases and some of the cases were under the Arms Ordinance where he had appeared as recovery witness. Be that as it may, we do not consider that this would make Nur Hussain a false witness particularly when there is nothing to show that he had any personal grievance or grouse against the accused. Muhammad Sarwar has also supported the prosecution case and so has Nazir Ahmad. We do not find any force in the contentions raised by the learned counsel for that appellant, and reject the appeal.

14. Lastly, the learned counsel argued regarding the quantum of sentence. His argument was that there appeared no reason for Mumtaz accused/appellant to stop the deceased from visiting Ch. Barkatullah, M. N. A. who was a Party Leader of both the sides ; the prosecution did not come out with the whole truth regarding the motive. Possibility of the deceased having played a role to discredit the accused or having made any aspersions on his personal loyal to the party or to the M. N. A. concerned cannot be excluded. It was further contended that the deceased in his dying declaration and the other eye‑witnesses produced at the trial did not take the matter any further as to why the accused had asked the deceased not to visit Ch. Barkatullab, M. N. A. Motive, though not a sine qua non for bringing the offence of murder home to the accused, is relevant and important on the question of sentence. In the instant case the motive alleged by the prosecution remains obscure and it cannot be positively maintained that the deceased was stabbed just for refusing to stop seeing Ch. Barkatullah, M. N. A. It seems that there was something else which had actually enraged the accused to attack the deceased. Thus, for the safe dispensation of justice we consider that life imprisonment, in the case in hand, would meet the ends of justice. Accordingly, we convert the death sentence, awarded to Mumtaz accused/appellant to life imprisonment and a fine of rupees fifty thousand (Rs. 50,000) in all or 5 years' R. I. in default. The amount of fine, if recovered, shall be paid to the heirs of the deceased. Mushtaq's Appeal No. 192/78 against the conviction under section 13 of Arms Ordinance is dismissed.

15. As regards the appeals of the other two accused/respondents Sabi and Mukhtar, we do not find any evidence to saddle them with the responsibility of sharing common intention with Mumtaz accused/appellant. They might have been present at the time of occurrence and played the role attributed to them but without knowing that Mumtaz accused/appellant would whip out a knife and cause a fatal injury to the deceased. Thus, appeal against the acquittal of Sabir and Mukhtar, respondents, stands dismissed. Order accordingly.