1980 P Cr (PLP)

(4) A contusion " in diameter on the left buttock.

7. From the external, as well as, internal examination of the dead body, the doctor was of the opinion that the death was due to shock and haemorrhage, resulting from the aforementioned injuries, particularly, from injuries Nos. 1 and 2, which appeared to have been caused by a heavy sharp cutting weapon, such as a hatchet. Whereas Injuries Nos. 3 and 4 appeared to have been caused by a hard and blunt substance, such as a lathi. The internal damage on the body was the result of the external injuries. Injury No. 2, individually and the other injuries, collectively, were sufficient in the ordinary course of life, to cause death. The probable time between the injuries and the death was given, as about three days. The same doctor also examined injured Rasool Bux and found the following injuries: (1) A contusion 1" x 1" on the left side of the forehead. (2) An abrasion 1" x " on the upper part of the left side of the nose. (3) A contusion 2" x 1" on the lower part of the left side of the back. (4) A contusion 1" x 1 on the right temporal region. All these injuries appeared to be simple in nature and were caused by hard and blunt substance, such as a lathi, within a probable duration of four hours.

8. The vardat was inspected by the police, in presence of the Mashirs. It was near a but on Arore Hill in Rohri. H. C. Luqman recorded the state ments of injured P. Ws. Gulan and Rasool Bux in the hospital.

9. On the same day (7‑1‑75) H, C. Muhammad Luqman went to Arore Village, in search of the accused persons and arrested all the four appellants, in presence of the mashirs. Appellant Ali Gul, Khillan and Rahimdino lived in a common enclosure. Ali Gul volunteered to produce a hatchet from his house. It was found blood‑stained and was secured in presence of the mashirs, who were of the locality, and were present. Appellant Rahimdino also produced a blood‑stained hatchet in presence of the same witnesses. All the articles were secured and sealed. Appellant Abdul Rahim, whose house was on the back side of the remaining three appellants, was also arrested from there. He also produced a hatchet, which, to the naked eye, did not show blood stains. It was also secured and sealed by the police. All the four appellants were then brought to the police station. On 11‑1‑1975 H. C. Muhammad Luqman handed over the police papers to S. H. O. Haji Noor Muhammad Jalbani of P. S. Kandhra for further investigation. The S. H. O. had verified the evidence already collected by H. C. Muhammad Luqman. He further. got statements of P. Ws. Gullan and Rasool Bux, recorded under section 164 Cr. P. C. before Mukhtiarkar. After completing the investigation, the case was challaned in the Court. The blood‑stained articles were despatched to the Government Chemical Examiner for his opinion. The hatchets secured from appellants Ali Gul and Rahimdino son of Khillan, were found stained with human blood by the Examiner; whereas, there is no proof if the other articles were forwarded, for opinion, to the Government Examiner.

10. The defence of the appellants was a bare denial. In his statement appellant Ali Gul stated that none of the witnesses had deposed against him, in the trial Court; and that they had made false statements in the committal Court. He further pleaded that he is a blind man and could not take part in the fight and was falsely implicated. The rest of the appellants had merely denied the allegations and stated that they were implicated due to enmity. No witness was examined by any of the appellants in their defence.

11. The learned counsel Mr. Imam Ali Kazi appearing for the appellants, has at the outset, submitted that though at the stage of the committal inquiry, the eye‑witnesses had fully implicated the appellants, but later on, at the trial, in the Court of Session, they had not supported the case of the prosecution and were declared hostile. Their statements recorded at the committal inquiry were brought on the record under section 288, Cr. P. C. as substansive pieces of evidence. He has argued that the statements recorded during the committal inquiry, were, though recorded, before the law reforms came into force, but when those statements were transferred by the trial Court under section 288, Cr. P. C., as substantive piece of evidence, it was done after the law reforms were introduced and became operative, by which section 288, Cr. P. C. was deleted from the statute book. He has, therefore, contended that, if the statements recorded at the committal inquiry are excluded from consideration, there is no evidence at all against the appellants. The point raised by the learned counsel has no merit. There is a saving clause in section 265, Cr. P. C. which reads as under:‑ "Notwithstanding any thing contained in the Law Reforms Ordi nance, 1972, or in the Code, as amended by this Act, any case triable by the Court of Session or High Court, and pending, immediately before commencement of this Act, in such Court, in which no evidence has been recorded, before such commencement shall proceed with and be completed in accordance with the provisions of this Act."

12. In this case, during the committal proceedings evidence was recorded, which could be construed to be evidence recorded in the same proceedings, where a charge was also framed by the committal Court in respect of the alleged offences. It is clear that all rights and liabilities continue in spite o repeal of section 288, Cr. P. C. and all proceedings already pending, continue, as if the amendment had not come into force. When the law is altered, during the pendency of an action, the rights of the parties are to be decided 14 according to the law, as it existed when the action was takes, unless the new Act or amendment, expressly shows clear intention to vary such rights, with retrospective effect. Therefore the procedure already prevalent, in the pending cases, had continued and could not be terminated by the enforcement of the Law Reforms Ordinance, which does not expressly or by implication apply retrospectively.

13. The learned counsel Mr. Kazi next criticised the ocular evidence of the eye witnesses. Soomar complainant (P. W. 1) was an injured witness. He is the brother of deceased Imamuddin. The four appellants are related to him and reside near him in Arore. He had admitted to have correctly lodged the First Information Report, bearing his signature. He had fully implicated the appellants, when his statement was recorded during the committal proceedings. At the trial in the Court of Session, he had repudiated those statements and was thus declared hostile. In the cross examination to the learned D. P. P. P. W. Soomar had admitted that he had given a true statement in the Committal Court, to the effect that he alongwith P. W. Rasool Bux, Gul Muhammad and deceased Imamuddin were working at Hill Arore. All the four accused came there and quarrelled with the brother, the deceased (Imamuddin) over the loading of the stones into the trucks. His entire deposition recorded in the Committal Court was read over to him and he had admitted that whatever was written therein, was correct. The entire deposition accordingly was transferred by the learned trial Judge to the file of the case under section 288, Cr. P. C.

14. The next witness is Gullan alias Gul Muhammad father of the deceased Imamuddin. He was also injured in the fight. He had also implicated the appellants in his statement in the committal Court, but had given a go‑bye to the prosecution, at the trial. He was declared hostile and was confronted with his deposition recorded in the committal Court. He admitted to have given a true statement during committal inquiry. He admitted that he had sustained simple injuries, while rushing towards his injured son, who had fallen down. He also admitted that the appellants are his caste‑fellows. He was confronted with his committal Court statement, which was, under the circum stances transferred under section 288, Cr. P. C. In his statement in the committal Court, he had stated that it was about 8 or 9 a. m. when labourers were working at the Hill. Deceased Imamuddin had asked Ali Gul and other accused, why they were taking the stones from the Hill. The deceased and the accused had fought over this. Accused Ali Gut and Abdul Rahim were armed with hatchets. The other accused were armed with lathis. The accused had attacked the deceased. They tried to save the deceased and rescue him. The P. Ws. Rasool Bux also witnessed the incident. He also tried to intervene, but was caused the injuries by lathis on his head. The witness had seen the deceased Imamuddin, lying on the ground unconscious. They carried the deceased as well as P. W. Rasool 9ux, who was also injured, to the police station.

15. The next injured eye‑witness is Rasool Bux (P. W. 5). This witness was confined in District Jail, in a theft case, and was brought as an undertrial prisoner, when his statement was recorded at the trial. He had also supported the prosecution version of the case, in enquiry proceedings, but did not support the case at the trial. He was also declared hostile and was confronted with his committal Court statement, which was brought on the record under section 288, Cr. P. C., in which he had deposed that he was working at the vardat, at Hill Arore. It was further stated that on the day of incident, when the appellants had come there, the deceased Imamuddin had asked the accused, as to why they had taken those stones in the truck, on which there was a fight between the two parties. He had stated that Ali Gut and Rahimdino were armed with hatchets, while appellant Khillan and Abdul Rahim had lathis in their hands. He went on to state that all the appellants had attacked the deceased. He tried to intervene and had himself received injuries, with lathis, at the hands of the appellants. P. Ws. Gut Muhammad and complainant were also present at the vardat. They all had seen the deceased Imamuddin lying injured and bleeding. He finally stated that the injured was first taken to the police station, from where, he was removed to the Civil Hospital, Sukkur.

16. It has also been argued by the learned counsel that when a witness has repudiated his first statement, recorded in the committal Court, he becomes an unreliable witness and his evidence at the trial cannot be accepted, without corroboration. This contention also has no force, in the circumstance e of this case. It is in evidence that the parties are related and the witnesses have gone out of their way to falsely state at the trial to exonerate the appellants.

17. In the case of Rajoo v. State (1971 S C M R 216), the Supreme Court had observed "We have been taken through the evidence in this case, and we feel that the Committing Court statements of the ocular. witnesses, which were duly transferred to the Sessions record under section 288 of the Code of Criminal Procedure were true and rightly accepted both by the trial Judge and the High Court, in preference to the statements made by them at the trial with the deliberate object of shielding the appellant from the consequences of his act. The Committing Court statements of the witnesses thus transferred were good evidence for basing the appellant's conviction on the same, and they found substantial corroboration from the fact that the clothes recovered from the appellant, were found to be stained with human blood. There is the additional corroborative evidence of motive in this case, which gains significance by the reason that the appellant had first killed Mst. Maqboolan, and then assaulted Mst. Zainab, each of whom he had wanted to marry, but his hopes had been foiled. The assault on Mst. Zainab, having been made in quick succession after the fatal assault on Mst. Maqboolan, leaves no room for doubt that in a mood of desperation, the appellant wrought his revenge on both of them, as they had rejected his covetous desire to marry him." In yet another case of Muhammad Yar and 5 others (1971SCMR667), the Supreme Court had made the following observation: "On careful consideration of the evidence produced in this case, it is quite clear that all the prosecution witnesses had been won over by the accused persons. This was admitted by P. W. Sarang. They had, therefore, made concessions in favour of the accused persons. 1t was in these circumstances that resort was made to section 288, Cr. P. C. and the statements made before the committing Magistrate were taken into consideration for finding out the guilt of the accused persons. In the present case, the statements made before the committing Magistrate by the prosecution witnesses proved beyond reasonable doubt that the appellants were responsible for the murder of the deceased persons. These statements find corroboration in the recoveries made from the appellants, namely, chadar P. 13 from Salabat, shirt P. 14 from Ghulam Rasul, shirt P. 15 from Khan Muhammad vest 16 from Ahmad Yar, vest P. 17 from Hayat and vest P. 18 from Muhammad Yar son of Bahadur. All these articles were found stained with human blood by the Serologist and, therefore, the learned Judges of the High Court were perfectly justified in treating it as corroborative evidence‑21f the statements made by the prosecution witnesses in the committing Court. The learned Judges of the High Court did not take into consideration the recoveries of the weapons and we consider that in the circumstances of the present case they were justified in doing so. In this view of the matter the High Court was perfectly justified in upholding the conviction of the appellants under section 302/149, P. P. C., and no exception can be taken to it. We, therefore, find no force in this appeal which is dismissed."

18. It is further faintly argued by Mr. Kazi that the medical evidence does not fully corroborate the injuries on the person of the eye‑witnesses. This point has also no force, as the injuries on the witnesses are simple and the medical evidence does make a mention of simple injuries.

19. Lastly it has been contended that the dying declaration is in fact not the piece of evidence worth relying upon, as at the time, it was recorded, the deceased was not expecting to die. It is further stated that the statement does not bear the signature of the deponent, nor, it is countersigned, by any doctor of the Hospital. It would be proper to refer to section 32(1) of the Evidence Act which reads as under:‑ "When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction, which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant, whether the person, who made was or was not, at the time, they were made, under expectation of death, and whatever may be the nature of the proceedings, in which the cause of his death comes into question."

20. It will further be observed that subsection (2) of section 162, Cr. P. C. it provides:‑ "Nothing in this section shall be deemed to apply to any statement falling within the "provisions of section 32(1) of the Evidence Act or to affect the provisions of section 27 of that Act."

21. Thus, the dying declaration to which clause (1) of section 3 of Evidence Act applies, would not be hit by section 162 of Cr. P. C. This dying declaration is, therefore, a good piece of evidence in establishing the charge against the appellants.

22. This statement, though does not bear the signature of the deponent is, yet, admissible in evidence and can be safely relied upon. The dying declaration is supported by the version given by the eye‑witnesses in their statements before the committal court, which have been transferred on the record of the trial Court under section 288, Cr. P. C. and are substantive pieces of evidence.

23. In addition the recoveries of the hatchets, which were found stained with human blood, go further to provide strong corroboration to the occular version. The mashir Mohammad (P. W. 3) being the caste fellow of the appellants had also not supported the case of the prosecution. However, the evidence of Mohammad Luqman, who had initially investigated the case before whom the hatchets were produced, has supported the case. There is no hostility of this witness against any of the appellants. He is as good a witness, as any one else. The mere fact that he is a Police Officer, will not change or alter the credibility of his evidence, particularly, when nothing adverse, has been brought on record by the appellants, against him. Therefore, the standard of appraising his evidence would be the same, as of any other witness. His evidence is therefore believable and reliable in support of the recoveries of the hatchets. Reference to the case of Qassim v. State (P L D 1967 Kar.253), will support this conclusion.

24. On the examination of the record, and after hearing the full arguments of the learned counsel Messrs Imam Ali Kazi and S. Murtaza Hussain, who have taken us through the entire evidence, we find that the case has been fully established, beyond all reasonable doubt, against the appellants. Due to relationship, the injured eye‑witnesses, had deliberately shielded the appellants from the consequences of their criminal act. It is very sad affair that witnesses in our country try to save relatives and hide the truth, even in cases, where murder of their own kith and kin had been committed.

25. From the occular evidence of the eye‑witnesses coupled with recoveries of blood‑stained hatchets, the dying declaration, supported by medical evidence on the record, we are satisfied that all the four appellants had participated in the attack with the common object, and were responsible for the g murder of the deceased. The judgment of the trial Court, therefore, does not call for any interference, ,We find no merit in the appeal, which is hereby dismissed. Appeal dismissed