1984 P Cr (PLP)

IJAZ NISAR, J.-Munawar Alam Masih (26) son of Rehmat Masih Christian resident of Khokharke, Police Station, Satellite Town, Gujranwala, has been convicted by the learned Additional Sessions Judge, Gujranwala on 21st January, 1981 and sentenced to death and a fine of Rs. 10,000 or in default to undergo three years' R. I. under section 302/34, P. P. C. and to 10 years' R. I. and a fine of Rs. 5,000 or in default to undergo two years' R. I. further under section 392/397, P. P. C. for committing the murder of Abdul Jabbar deceased (25) and for committing robbery by depriving, the deceased of his taxi-car alongwith an unknown person. Half of the fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. The murder reference and the appeal are before us.

2. The case for the prosecution in brief is that on 28th September, 1978 at about 6-15 a.m. a truck driver brought the deceased to Rural Health Centre Pindi Bhattian in an injured condition. Dr. Muhammad Fakhar Ali P. W. 3 examined him and sent an intimation to the S. H. O., P S. Pindi Bhattian in this behalf. Band Ali Shah, A. S. I., P. W. 15 reached the hospital and enquired from the doctor as to whether Abdul Jabbar deceased was fit to make the statement. On getting a reply in the affirmative he recorded the statement Exh. P. B. of the said Abdul Jabbar. After recording the same the A. S. I. sent it to the Police Station for formal registration of the case and he himself proceeded to the place of occurrence from where he took into possession blood-stained earth. Abdul Jabbar who bad fire-arm injuries on his person died on the same day at about 1,0.00 a.m. Band Ali Shah, A. S. I., prepared his injury state ment Exh. P. O. and the inquest report Exh. P. O./l.

3. The A. S. I. had also examined Sardar Muhammad P. W. 5 on the same day. The latter stated that on 27th September, 1978 at about 6-15 p.m. he was present at Lohari Taxi Stand alongwith Khawar Maqsood P. W. 6, Asghar Ali P. W. 7 and Abbas (not produced) when the present; appellant alongwith another came there for hiring a taxi for Sheikhupura, Firstly, they contacted him and when he was setting the fare, the deceased reached there with his taxi bearing No. LEM-199. The appellant and his companions, after settling the amount with the deceased, sat in his taxi but while entering it they showed their intention of travelling upto Pindi Bhattian instead of Sheikhupura and agreed to the increase of fare to Rs. 200 as demanded by the deceased. On the next morning at about 9-00 a.m. he received a telephone call from Pindi Bhattian that the passengers who had hired the taxi of Abdul Jabbar deceased had fired at him whereupon he accompanied by a brother of Abdul Jabbar deceased reached the hospital at Pindi Bhattian but Abdul Jabbar bad died before their arrival. On 31st October, 1978 the Kamoke Police took into possession the taxi-car of the deceased in connection with the commission of some offence. Band Ali Shah, A. S. I., reached there and took the said taxi -car into possession.

4. Shahid Farooq S. I. P. W. 9 arrested the appellant from Village Sammobala from the house of his in-laws on 28th October, 1978. Syed Abdul Khaliq, M. I, C. Hafizabad P. W. 13 conducted an identification parade in the District Jail, Gujranwala on 6th November, 1978 and 7th November, 1978 and subjected Sardar Muhammad, Asghar Ali, Khawar Maqsood and Abbas P. Ws. to the test. According to him except Abbas (not produced) the other witnesses correctly picked up the appellant. He stated that before the identification parade was held the appellant had objected that after his arrest he had been kept in the police lock-up for 8/9 days and for one night at the residence of S. H. O. Kamoke where he was shown to two or three persons most likely to those who were going to participate in the identification parade. T' S. Dr. Muhammad Fakhar Ali P. W. 3 conducted the post-mortem examination on the dead body of Abdul Jabbar deceased on 28th September, 1978 at 4-30 p.m. and found the following injuries thereon: - (1) A rounded lacerated wound of 1/10 radius with inverted margins and tatooing of skin area 1/3" around it. Over interscapular region of back of chest 1/2" right to the mid line at the level of third dorsal spine. The wound was going deep to the chest cavity. (2) Lacerated wound 1/5" x 1/10" x skin deep middle of fore head. (3) Contusion " x 1 " oval shape over right lateral chest. (4) Swelling defusely all over the back of right band and all around the right forearm. A metallic foreign body was found just under the skin, underneath injury No.

3. A hole was present in the 6th intercostal space under injury No.

1. Right lung was pierced through and through at its middle lobe. Right pleura was injured. Stomach was full of fluid material. Small intestine contained little digested food. Large intestine contained faeces. Bladder was full of urine. The death was due to shook and extensive haemorrhage resulting from injury No. 1 which was sufficient to cause death. Injuries Nos. 1 and 3 were caused by fire-arm while injuries Nos. Z and 4 were caused by blunt weapon. Injury No. 1 was inlet wound whereas injury No. 3 was an outlet wound. The duration between injuries and death was about 24 hours and that between death and post-mortem about 6 hours.

6. The appellant pleaded not guilty to the charge and denied the prosecution allegations. As regards his having been identified by the P. Ws. in the identification parade he stated that he had been previously shown to the P. Ws. About the dying declaration Exh. P. B., he stated that it was a fictitiously prepared document. He pleaded innocence and stated that he was in the custody of Kamoke police where he was tortured by the police, as a result of which his condition became serious and when the news of his detention and police torture appeared in daily Mashriq dated 28th October, 1978 he was immediately sent to the Judicial lock-up after showing his arrest in a criminal case. He examined Dr. Shah Nawaz, Medical Officer, District Jail, Gujranwala in his defence. The doctor stated that the appellant had been examined by Dr. Hafeez-ur-Rehman District Jail Gujranwala on 1st November, 1978 and according to the medico-legal report prepared by him 14 injuries were found on the person of the appellant when he was brought in the Jail on 1st November, 1978. All the injuries were simple, caused with blunt weapon within a duration of 1 to 2 weeks.

7. Relying upon the dying declaration Exh. P. B. and the statements of Sardar Muhammad P. W. 5 and Asghar Ali P. W. 7 the learned trial Court convicted and sentenced the appellant as stated above.

8. Impugning the findings of the learned trial Court, the learned counsel for the appellant states that the Court failed to consider that the deceased could not have been in a position to make such a detailed statement after receiving fire-arm injuries on vital parts of the body, that Sardar Muhammad and Asghar Ali P. Ws. could not be expected to correctly pick up the appellant in the identification parade because of their not being acquainted with him previously and further because of the non-matching of the description of the appellant with the one as mentioned in the dying declaration. He further contends that Khawar Maqsood P. W. 6 is not named in the dying declaration which forms the F. I. R. in the case and it is for this reason that the trial Court has not considered his evidence worthy of reliance. Lastly, he contends that there is no confirmatory circumstance to establish the identity of the appellant with the crime.

9. Admittedly nothing incriminating has been recovered from the possession of the appellant. The recovery of the taxi of the deceased is of no avail to the prosecution because there is no evidence to show that it was recovered from the possession of the appellant or that the appellant was found in it at the relevant time. As to the capability of the deceased to make the dying declaration reference be made to the medical evidence. Fire-arms injuries were found on his person caused from a very close range. His right lung was found pierced through and through. The bullet had entered from one side of the chest and had come out from the other. In view of the injuries suffered by the deceased he must have been in a shock if no altogether unconscious and it appears to be improbable that he was in possession of full mental faculty in having got recorded the details of the occurrence in so precise manner as not to omit any necessary and relevant detail. There is another reason for doubting the genuineness of the dying declaration by the failure of the police to associate any person from the hospital staff at the time of recording the same. Although it was recorded in the Rural Health Dispensary but no effort was made to obtain the attestation of the doctor or any other official of the hospital. It appears that the doctor might not have agreed to share the responsibility by attesting the statement not coming from the mouth of the deceased but recorded by the police at the instance of the attendants of the deceased. In the present case it stands established from the evidence that Sardar Muhammad P. W. 5 had reached the hospital near about the time of recording the dying declaration. Thus, the possibility of its being recorded at his instance cannot be ruled out. There is a concensus of opinion that the dying declaration has to be subjected to a very close scrutiny keeping in view the fact that the statement is made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross- examination. The dying declaration stands on the same footing as other piece of evidence and has to be weighed in the light of the surrounding circumstance and with reference of the principle governing the appreciation of evidence in criminal cases. There is no denying the fact that the appellant or his companions are not named in the F. I. R. and only their description is mentioned therein. According to the deceased one of the two accused was a bald-headed person and it was he who had fired the revolver shot at him but the-appel lant is not a bald-headed person as admitted by Sardar Muhammad P. W. 5 and Asghar Ali P. W. 7.

11. The occurrence took place on 27th September, 1978 whereas the identification parade was held on 6th November, 1981. The appellant was admittedly not known to the witnesses before and they had only a glimpse of his face during the hiring of the taxi by him. This fact coupled with the intervening period considered in the light of definite allegation of the appellant that he had been shown to the witnesses prior to the identification parade makes the evidence of identification extremely doubtful and difficult to accept. The question was considered in Gul Beg and others v. The State. (P L D 1964 Kar. 275) and it was observed by their Lordships as follows: - "This delayed identification test based upon a momentary and partial glimpse of the face of the assailant is such that we find it extremely difficult to accept with implicit reliance. Besides, identification evidence has been considered by various Courts to be a weak type of evidence-a form of evidence which is always to be taken with a considerable amount of caution." In Qabal Shah and others v: The State (P L D 1960 Kar. 697) testimony of persons identifying the culprits after a month and 17 days of the occurrence was not believed. Furthermore, the only evidence relied upon by the prosecu tion is of the last seen and not of any other circumstance. As regards the evidentiary value of last seen, I may refer to Karamat Hussain v. The State (1972 S C M R 15) where it was observed that evidence of the deceased having been last seen alive in the company of the accused is a weak type of circum stantial evidence for basing conviction. Admittedly there is no direct in the case and the case rests on the circumstantial evidence alone. The rule in such type of cases is that no link in the chain should be broken and the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused. 12 Applying the above test we are of the view that the prosecution has not been able to prove its case against the appellant beyond all reasonable doubt. Consequently, we accept his appeal, set aside his conviction and sentence and acquit him of the charges. He shall be set at liberty forthwith if not required in any other case. M. Y. H. Appeal accepted.