1987 PLP 1215 (SCMR)

The deceased Iftikhar‑ud‑Din belonged to Gujranwala and was working mostly in West Germany but visited Gujranwala frequently from where he would take with him some young men desirous of seeking employment in West Germany, obviously on receiving considerable sums of money from them for this favour. According to the prosecution he came to Gujranwala in October 1976 and on his way back to West Germany took with him a number of persons including the appellant with the object of getting them employed there. He had received some money from the appellant in consideration for taking him to West Germany and on reaching there he managed to get a job for him. However, the appellant was involved in some incident with a German girl and had returned back to Gujranwala only after staying there for six months. In July 1977, the deceased again came home to Gujranwala where the appellant started demanding the return of his money, but this claim was rejected by the deceased on the ground that he had fulfilled his part of the bargain by taking him to West Germany and getting him employed there. The appellant was, however, not satisfied with this reply and continued to insist for the return of the money paid by him to the deceased. On the fateful day, namely, 16‑9‑1977, which was the day of Eid‑ul‑Fitr, the appellant visited the house of the deceased in the early afternoon and told him that his father wanted to see him. The deceased and the appellant then went to the house of the appellant in Mohallah Bakhtewala on the scooter of the deceased. The appellant's father repeated the demand of return of the money which was again rejected by the deceased on the ground that he had fulfilled his part of the bargain. Ultimately, it was decided to refer the dispute to a retired police officer by the name of Shabbir Hussain Shah, on the following day. After the above settlement the deceased started for his house but the appellant asked him for the lift up to the main road. The deceased obliged him and made him sit on his scooter. When they reached the main road the appellant asked the deceased to stop his scooter, which he did. Immediately thereafter the appellant whipped out a knife and inflicted a large number of blows on the persons of the deceased. On the alarm raised by the deceased, Abdul Ghani (P.W.7) and one Muhammad Yousaf were attracted to the spot. On seeing them the appellant rode away on the scooter of the deceased. Since the deceased had been severely injured Abdul Ghani (P.W.7) and his father Siraj Din took him to the District Headquarter Hospital, Gujranwala where he was examined by Dr. Harbans Lal at 4‑55 p.m. After obtaining the medico‑legal report of the deceased ~ Siraj Din and Abdul Ghani (P.W.7) proceeded to the local police station. On the way, near the railway station, they met A.S.I. Muhammad Majeed (P.W.12) of Police Station, Kotwali. A.S.I. Muhammad Majeed (P.W.12) accompanied them to the District Headquarter Hospital. After obtaining a certificate from Dr. Harbans Lal (P.W.8) that the deceased was fit to make a statement A.S.I. Muhammad Majeed recorded his statement (Exh.P. C.) at 10‑30 p. m. On the basis of this statement, a case was registered at Police Station Kotwali, on the same night at 11 p.m. As the condition of the deceased worsened he was taken to the Mayo Hospital at Lahore where he expired on 20‑9‑1977 at 3‑45 p.m. The appellant was arrested on 18‑9‑1977 while riding on the scooter of the deceased. On his search, a blood‑stained knife (P.3) was found from the fold of the Naifa of his Shalwar. The recovery of the knife and scooter was also witnessed by Abdul Ghani (P.W.7) and Muhammad Yousaf who was not produced at the trial. The knife was sent to the Chemical Examiner and the Serologist and according to their reports the blood on the knife was of human origin. The learned Additional Sessions Judge rejected the recovery of the blood‑stained knife from the possession of the appellant because no such corresponding blood‑stained marks were found on the Naifa of the appellant's Shalwar and this finding was also not disputed by the State before the High Court. The dying declaration contained in Exh.P.C. was also not relied upon on the ground that it was contained in a very long statement and it was difficult to believe that the deceased would have made it in his state of health. However, the evidence of Abdul Ghani (P.W.7), who claimed to be an eye‑witness, was relied upon as also the statement allegedly made to him by the deceased soon after the occurrence on Abdul Ghani's enquiry as to why he had been attacked by the appellant. Leave was granted to re‑appraise the evidence by this Court observing:

‑ "The important evidence against the petitioner consisted of the dying declaration allegedly made by the deceased in the hospital before his death and the evidence of Abdul Ghani P. W.7, who claimed to be an eye‑witness. The High Court was of the opinion that it would not be safe to rely upon the dying declaration and based the conviction mainly on the testimony of Abdul Ghani P.W. Mr. Aftab Farrukh, learned Advocate for the petitioner, in support of this petition for leave to appeal, has contended with some force that Abdul Ghani's claim to be an eye‑witness cannot be accepted. Although we ourselves were inclined to accept the authenticity of the dying declaration but the High Court has discarded it. In the circumstances we consider that the evidence requires to be re‑examined and leave to appeal is granted to consider if the High Court has appraised the evidence on the correct legal principles and if sufficient evidence existed, on which a conviction could be recorded on a capital charge." The learned counsel for the appellant has argued that the evidence of Abdul Ghani (P.W.7) could not be relied upon. He was a chance witness; that even though he was not related to the deceased yet he could not be described as a disinterested witness. He lived in the same street as the deceased. He was a Mughal by caste, as was the family of the deceased and an active member of that community being a member of the Mughal Union. In fact, he appears to have been very closely connected to the family of the deceased because it was he who accompanied the deceased to the hospital; he also accompanied Siraj Din while going to the police station, he accompanied the police when the appellant was arrested on 18‑9‑1977 and also witnessed all the recoveries made in the case. On the death of the deceased it was he who informed the police that the deceased had died on 20‑9‑1977. Moreover, he made a material improvement in his statement in Court by deposing that on his enquiry from the deceased as to why the appellant had given him knife blows the deceased told him that he had taken the appellant to Germany and had got him employed there but during his stay he had assaulted a German woman, in which affair he had refused to help the appellant. However, in cross‑examination he candidly admitted that he had not stated any of this before the police. Although the above facts do reflect adversely on the claim of Abdul Ghani to be an independent witness but in our view, the fact which makes the evidence of Abdul Ghani (P.W.7) unworthy of reliance is the circumstance that after he and Siraj Din (the father of the appellant) had got the deceased admitted in the hospital, obtained medico‑legal report from the Doctor and were going towards the police station to report the incident, they did not inform Muhammad Majid. A.S.I, whom they met on the way, as to who had caused the injuries to the deceased. In his cross‑examination Muhammad Majid A.S.I. (P. W.12) admits that when Siraj Din produced the medico‑legal report pertaining to his son near the railway station he did not enquire "anything about the occurrence from Siraj Din and Abdul Ghani". He goes on to add that "Siraj Din or Abdul Ghani did not tell me of their own that they were eye‑witnesses to the occurrence. The said, two persons did not name any person as an accused before me at that time". On being cross‑examined further on this point Muhammad Majid A.S.I. (P.W.12) states that "Siraj Din and Abdul Ghani did not have any talk with me with regard to the occurrence of this case on our way from the railway station to the Civil Hospital. We had travelled this distance quietly" And then proceeds to add: "Before recording of the statement of Iftikhar I had no information that Siraj and Abdul Ghani were eye‑witnesses to the occurrence. It was on the statement of Iftikhar that I came to know that Siraj and Abdul Ghani were eye‑witnesses to the occurrence". After the above statement of the Investigating Officer it would be risky to believe that Abdul Ghani had witnessed the occurrence because if he had indeed witnessed the occurrence and accompanies Siraj Din when he went towards the police station to inform the police about the incident, the first thing he (Abdul Ghani, P.W. 7) would' have done would be to inform the police officer that he was an eye‑witness of the occurrence wherein the appellant had caused injuries to the deceased. His keeping mum when he met the police officer after he met him soon after the occurrence casts grave doubts to his claim of being an eye‑witness of the occurrence. In these circumstances, we consider, that it would not be safe to rely upon his sole testimony for convicting the appellant on a capital charge. It has already been observed that the recovery of the blood‑stained knife was disbelieved by both the Courts below and so far as the recovery of scooter from the deceased is concerned the same too is doubtful because we observe from the statement of Ghulam Hussain Head Constable (P. W.4) that although he makes mention of the receipt of the sealed parcel containing the blood‑stained earth and the sealed parcel containing the knife, no reference is made by him of the scooter ever being handed over to him. In these circumstances, we do not think that it would be consistent with the principles of safe administration of criminal justice to uphold the conviction of the appellant under section 302, P.P. C. or even under section 379, P.P. C. We, accordingly, acquit the appellant of both the charges and order that he shall be set at liberty unless wanted in any other case. The appeal is, accordingly allowed. M.B.A./M‑102/S Appeal allowed.