P L D 1965 (W (PLP)

(a) Evidence Act (I of 1872), S. 32‑--Oral dying‑--declaration

Cannot be rejected merely because no mention is made of it in subsequent statement recorded by doctor‑Penal Code (XLV of 1860), S. 302. (b) Penal Code (XLV of 1860), S. 302‑--Identification parade

Magistrate failing to hide scar marks on faces of accused

Identification by prosecution witnesses not relied upon. Abdul Qayyum for A. G. for the State. JUDGMENT SHAKIRULLAH JAN, J.‑

Allah Dad, also known as Dad, son of Ghulam Hussain, aped 22 years, caste Tarkhan, Muhammad Ramzan, aged 23 years, son of Ghulam Muhammad, caste Mochi, and Salim Akhtar son of Ghulam Haider, aged 22 years, Rajput, all residents of Mohallah Amarpura, Rawalpindi City, were tried by the Additional Sessions Judge, Rawalpindi; under section 302/34, P. P. C. for the murder of Abdur Rashid son of Bostan (P. W. 19), on the night between 30th September and 1st of October 1961, at about 12 p. m., in the abadi near the crossing of Noorpur‑Muree Road, in furtherance of their common intention. They were convicted under section 302/34, P. P. C. and each was sentenced to transportation for life by the learned Additional Sessions Judge, by his order dated the 16th of February 1962. Allah Dad has preferred an appeal through Raja Muhammad Anwar, Advocate. whereas Muhammad Ramzan and Salim Akhtar have preferred separate appeals through jail. There is also a revision by the State praying that the sentence bf transportation be enhanced to death, and we propose to dispose of all the three appeals and the revision by this judgment; as they arise out of the same transaction.

2. Abdur Rashid, deceased 'was the younger brother of Gulistan Khan (P. W. 12) and son of Boston (

11. W. 19). Gulistan Khan (P. W. 12) was an employee of the Municipal Committee, Rawalpindi, and lived in Amarpura, Rawalpindi City and their father Bostan (P. W. 19) lives in village Sambal Kurag. Abdur Rashid deceased was living with his brother Gulistan Khan P. W. since two years before the occurrence and was working as labourer at Rawal Dam with contractors. During his stay at the house of his brother, the deceased be friended Muhammad Azim son of Miskeen, who was living in the neighbourhood and became on visiting terms with their family members. ‑In 'the course of his visits at the house of Miskeen, the deceased is said to have developed illicit intimacy with Mst. Gulzar Begum, daughter of Miskeen and wife of Yar Muhammad. Mst. Gulzar Begum had left the house of her husband on account of some domestic quarrel. Sometime before the occurrence Yar Muhammad brought a Jirga to Miskeen requesting him to allow his daughter, Mst. Gulzar Begum, to go back with him to his house. Mst. Gulzar Begum, however, refused to go with her husband and thus the latter became suspicious that it was on account of her illicit connections with the deceased that she has refused to go back to his house. Yar Muhammad is alleged to have informed his father about the illicit connection of the deceased with Mst. Gulzar Begum and thus Gul Muhammad, father of Yar Muhammad sent a Jirga to Gulistan (P. W. 12) requesting him to send away Abdur Rashid deceased from his house with a view to avoid further trouble Gulistan (P., W. 12) himself and also Muhammad Nazir (P. W. 13) prevailed upon the deceased to return to his native village "Sambal Kurag and so the deceased left the house of his brother and went back to his native village. After shifting to his native village, the deceased visited the house of his brother in Amarpura and in those days he was working on the Rawal Dam, where Allah Dad appellant was working as a mate. Muhammad Ramzan appellant is a friend of Allah Dad appellant. These two appellants are said to have been on visiting terms with the deceased. Allah Dad appellant is first cousin of Mst. Gulzar Begum and, therefore, Gulistan (P. W. 12) did not like his brother to be on visiting terms with Allah Dad.

3. A sister of the deceased is the wife of Muhammad Ramzan (P. W. 16), who was running a tea‑shop on Noorpur Road near Rawal Dam. The deceased was working as a labourer at Rawal Dam during the days of occurrence. After finishing his day's work, he used to go to the shop of Muhammad Ramzan (P. W. 16) in the evening and after taking his evening meals there he used to stay at the shop and assist him. On the 30th of September 1961, the deceased was present at the shop of Muhammad Ramzan P. W. when the three appellants went there at about 11 p.m. or 12 midnight. At the instance of Abdur Rashid deceased, Muhammad Ramzan (P. W. 16) prepared three cups of tea and gave a cup to each of the three appellants. After taking the tea, the deceased accompanied the three appellants to some place as requested by Allah Dad. While proceeding on their way, they were seen by Muhammad Azam (P. W. 14), who runs a tea‑shop on Noorpur Road, in front of the hotel of Muhammad Ramzan (P. W. 16). A short while later, Muhammad Ramzan heard an alarm raised by someone saying `mar gae, mar gae'. He took his petromax lamp and left in the direction of the place from where the alarm was coming: After covering a little distance, he found Khan Muhammad and Elahi Bakhsh P. Ws. with petromax lamps in their hands, who were also proceeding in the same direction. On reaching the place from where they had heard the alarm, they saw in the light of the petromax lamps, the three appellants inflicting knife blows to Abdur Rashid in the deserted shop of Rehman, blacksmith, Abdur Rashid deceased, however, ran out of the chhapar before the eye‑witnesses mentioned above had reached there. He was pursued by the three accused who overtook him just in front of the chhapar of Rehman and gave him some more knife blows and he fell down on the ground. The three appellants decamped from the spot. Muhammad Azam (P. W. 14) who had also heard the alarm had left in its direction accompanied by Muhammad Siddiq, Muhammad Azeem and Ghulam Nabi and they saw Elahi Bakhsh, Khan Muhammad and Muhammad Ramzan P. Ws. bringing back Abdur Rashid in injured condition. On the inquiry of Muhammad Azam. (P. W. 14), Abdur Rashid charged Muhammad Ramzan, Allah Dad and a third person for wounding him with knives. Abdur Rashid was brought to the road‑side near the shop of Khan Muhammad P. N'. where they stopped a truck and put Abdur Rashid in it and left for the hospital at Rawalpindi. They, however, stopped the truck on their way near the house of Gulistan (P. W. 12) where his father Bostan (P. W. 19) was also present and informed them of the incident. They went to the truck and made inquiries from the injured and then accompanied him to the hospital, where Abdur Rashid was admitted. Bostan (P. W. 19) went to Police Station Bhara Kau, where his report Exh. P. A. was recorded on the 1st of October 1961, at 4‑30 a.m., by Agha Saadat Ali, Sub‑Inspector (P. W. 15). Since Agha Saadat Ali, S. I. was ill, he deputed Irshad Hussain Shah (P. W. 20) to go to the spot. The latter on his arrival at the spot on the 1st of October 1961, took into possession the blood‑stained chaddar Exh. P. 1 which bore cut marks. It was lying in the chappar of Ramzan Lohar. From the same place he took into possession blood‑stained earth also near the place of the same chhapar and sealed it into a parcel vide memo. Exh. P. C. In the Civil Hospital, Rawalpindi, Abdur Rashid was examined by Dr. Muhammad Shami, on the 1st of October 1961 at 2 a.m., who found the following injuries‑‑ (1) An incised wound, 6" x 1" x scalp deep on the left side of the head 2" behind the left ear running from above downwards. (2) A stab wound 1" x ", bone deep on the right shoulder for which X‑ray was advised. (3) Incised wound, 1" x " x ", on the left side of back " lateral to vertebral column. (4) A stab wound " x " x 3", on the left side of back 2" lateral to vertebral column puncturing the lung. (5) A stab wound 1 " x " x ", just medical to left scapula. (6) A stab wound, 1 " x " x 3"; puncturing the lower part of the lung on the right side of the chest, 3" lateral to vertebral column. The injury to liver was doubtful, (7) An incised wound. 1 " x " x ", just above the iliac crest on the left side: (8) An incised wound " x " x ", on the left iliac crest. (9) An incised wound, 1" x " x ", on the left scapular region. (10) An incised wound, 1" x " x ", on the left shoulder with cut skin trial, 4" long. (11) An incised wound, 2" x ", muscle deep lateral to left shoulder. (12) An incised wound, 1" x " x ", on the lateral side of the right fore‑arm, 2" above wrist joint. (13) An incised wound on the palmer aspect of the left index finger. (14) An incised wound on the lateral and palmer aspect of the right ring finger, The condition of Abdur Rashid was precarious and so the doctor recorded his dying declaration Exh. P. G. on the 1st of October 1961, at 2‑15 a.m. who was fully conscious and in a "fit condition to make a statement. In this dying declaration he stated that two years before the occurrence there was a girl, namely, Mst: Gulzar Begum, daughter of Miskeen, living in Mohallah Amarpura who was the first cousin of Allah Dad appellant. He developed illicit connection with her. At the instance of his brother, he (deceased) left Amarpura and shifted to Sambal Kurag. His brother‑in‑law has a shop on the juncture of Noorpur‑Murree Road and there is a veranda at the back of the shop. He was called by Dad (Allah Dad) and Ramzan accused and he accompanied them to the veranda where they inflicted knife blows on him. They had no talk with him. He raised an alarm which could not be heard by anyone. From there he went running to the shop where on the alarm other people came. He was seen accompanying Allah Dad and Muhammad Ramzan by Ghulam Nabi, Muhammad Azam, Azram and Siddique, when he was called by the above‑named accused. Allah Dad (Dad) and Muhammad Ramzan were also accompanied by a third person who was not known to him.

4. Abdur Rashid deceased succumbed to his injuries on the 2nd of October 1961, at 5 p.m. in the hospital and the post -mortem examination on his dead body was performed by the same doctor on the 3rd of October 1961, at 10‑30 a.m. and confirmed the injuries earlier found by him. In the opinion of the doctor death was due to shock and haemorrhage resulting from multiple stab wounds to the lungs and liver. Injuries Nos. 4 and 6 were collectively and individually sufficient to cause death in the ordinary course of nature.

5. Salim Akhtar had been arrested by the New Town Police under section 109/55, Cr. P. C. and on receiving this information on the 2nd of October 1961, Irshad Hussain Shah (P. W. 20), took him into custody and joined him in the investigation of the case. From the personal search of Salim Akhtar, the New Town Police had recovered knife Exh. P. 7, which was taken into possession by Irshad Hussain (P. W. 20) vide memo. Exh. P. O. Aglia Saadat Ali partly investigated the case. On the 4th of October 1961, he got the site plan prepared by Muhammad Benaras (P. W. 11). He arrested Muhammad Ramzan and Allah Dad on the 4th of October 1961. Muhammad Ramzan had injuries on his person and after preparing his injury statement Exh. P. T. he was sent for medical examination to the Civil Hospital where he was examined by Dr. Imdad Hussain who found the following injury:‑ (1) An incised wound on terminal digit on right index ringer on outer side 1/8" x 1/8" x muscle deep. Salim Akhtar appellant was examined by Dr. M. A. Hashmi, M. O., District Headquarters Hospital, Rawalpindi, who found the following injuries:‑ (1) Multiple linear scratches in an area of 2 " x 2", on the back of left forearm, two inches above the wrist joint. (2) Two parallel scratches 1 " each below the right knee.

6. On the 7th of October 1961, Muhammad Ramzan appellant led the S. H. O. to the grave‑yard of Amarpura and got recovered the knife Exh. P. 2, from the depression of a grave, which he took into possession per recovery memo. Exh. P. D. Allah Dad appellant while in custody led the S. H. O. to the same grave and got recovered the knife Exh. P. 3 from a place slightly apart from the place from where Ramzan appellant had produced the knife Exh. P. 2 and it was taken into possession per recovery memo. Exh. P. E.

7. On the application dated the 5th of October 1961, Exh. P. F., Mr. Asghar Hamid, Magistrate Ist Class, with enhanced powers under section 30, Cr. P. C. held an identification parade in which Salim Akhtar appellant was mixed with seven other under‑trial prisoners and was correctly identified by Khan Muhammad, Muhammad Ramzan and Elahi Bakhsh P. Ws. ride Exh. P. S. /1.

8. The three appellants when examined at the trial pleaded not guilty.

9. In support of its story regarding the guilt of the appellants the prosecution relied upon the statements of the eye‑witnesses and the dying declaration Exh. P. G. made by the deceased and also on oral dying declaration alleged to have been made by him before Muhammad Azam (P. W. 14).

10. Muhammad Ramzan (P. W. 16) stated that on the day of occurrence the deceased came to his shop as usual in the evening and took his meals with him. He then stayed at his shop to assist him (Ramzan) for sometime as was normal routine with him. At about 11 or 12 p.m., the three appellants came to meet the deceased who requested the witness to serve them with a cup of tea each. After having their tea, the three appellants accompanied by the deceased left for a place. A short while later, Muhammad Ramzan (P. . W. 16), Khan Muhammad (P. W. 17) and Elahi Bakhsh (P. W. 18) heard someone raising an alarm. Taking his petromax lamp, Muhammad Ramzan (P. W. 16), left in the direction of the spot and was followed by Khan Muhammad (P. W. 17) and Elahi Bakhsh (P. W. 18), who were also carrying petromax lamps. On reaching near the spot, they saw the appellants dealing knife blows to the deceased.

11. A careful perusal of the statements of the three eye witnesses recorded at the trial and the dying declaration Exh. P. G. of the deceased would show that none of the three eye‑witnesses had seen the occurrence. In his dying declaration Exh. P. G., the deceased stated that he along with the two appellants and their third companion went to the chhappar, where he was attacked and he raised an alarm but no one could hear it. He went running from there and came to the shop and on the alarm many other persons came there. The dying declaration of the deceased is, therefore, inconsistent with the statements of the eye‑witnesses. It is not mentioned therein that the three eye‑witnesses were attracted to the spot on the alarm raised by him. From the dying declaration, it is, therefore, obvious that the persons who injured the deceased were neither seen nor identified by the eye‑witnesses as they had apparently left the spot without having been seen, because the eye‑witnesses for the first time came to know of the occurrence when the deceased had reached the shop of Ramzan (P. W. 16) in a wounded condition. The statement of Muhammad Ramzan P. W. is in conflict with the dying declaration because the deceased in the dying declaration did not state that while present in the shop of Muhammad Ramzan (P. W. 16), on the night of occurrence, he was contacted by the two appellants accompanied by an unknown person, and that after having a cup of tea each, he left the shop and accompanied them. Muhammad Ramzan P. W. in his statement recorded by the police and the Inquiry Magistrate did not state that the accused accompanied by the deceased had gone on the western side of his shop and this important improvement was made at the trial with a view to show that much before the occurrence the three appellants had come to the shop and after having a cup of tea had left the shop with the deceased so as to show that he had an opportunity to see and identify the culprits.

12. Taking the evidence on record into consideration, we are of the opinion that none of the three eye‑witnesses had seen the three appellants dealing knife blows to the deceased and so we reject their statements The statement of Khan Muhammad (P. W. 17) recorded at the trial that on the night of occurrence at about 11 or 12 p.m. he had seen the three appellants accompanied by Abdur Rashid deceased passing in front of his shop in the direction of the chhappar of Rehman Lohar, is also an improvement because he did not mention in his statements recorded by the Inquiry Magistrate and police that the accused and the deceased had gone in the direction of the chhappar of Rehman Lohar. It is evident that Khan Muhammad (P. W. 17) was busy in serving his customers and had in fact not seen the three appellants going to the chhappar of Rehman Lohar.

13. Having disbelieved the statements of the eye‑witnesses, now we are left with the oral dying declaration of the deceased alleged to have been made before Muhammad Azam (P. W. 14) and his dying declaration Exh. P. G. recorded by the doctor. The learned counsel for the appellant urged that no oral dying declaration was made by the deceased before Muhammad Azam (P. W. 14) because the deceased had failed to mention it in his dying declaration Exh. P. G. that on the inquiry of Muhammad Azam P. W., he had charged Allah Dad, Muhammad Ramzan and their third companion for his injuries. It is true that the, oral dying declaration was not mentioned by the deceased in his dyeing declaration Exh. P. G. recorded by the doctor but this is not sufficient to reject the statement of Muhammad Azam (P. W. 14). It may be pointed out here that the learned counsel appearing for the appellants at the trial did not cross‑examine Muhammad Azam (P. W. 14) about the oral dying declaration made before him by the deceased. Again, the shop of Muhammad Azam (P. W. 14) is close to the shop of Muhammad Ramzan (P. W. 16) and obviously on hearing that the deceased had come to the shop of Muhammad, Ramzan (P. W. 16) in a wounded condition, Muhammad Azam (P. W. 14) went there and on his inquiry the deceased charged Allah Dad. Muhammad Ramzan and their third companion for his injuries. Muhammad Azam (P. W. 14) is neither related to the deceased nor has any enmity with the appellants and, therefore, he has no motive for a false charge and in these circumstances, we hold that on the inquiry of Muhammad Azam (P. W. 14), the deceased had charged Allah Dad, Muhammad Ramzan and their unknown companion for his injuries. In his dying declaration Exh. P. G., Abdur Rashid deceased charged Dad (Allah Dad) and Muhammad Ramzan for giving him knife blows and also charged a third person who was not known to him. In his‑ two dying declarations the deceased has consistently charged Allah Dad, Muhammad Ramzan and their third companion for dealing him knife blows. The occurrence took place at about midnight and according to the calendar, moon rise was at 10.25 p.m. and thus the deceased was in a position to identify the culprits and he consistently charged the two appellants and their third companion. The dying declaration further shows that the deceased had accompanied Dad (Allah Dad), Muhammad Ramzan and their third companion. and on reaching the chhappar of Rehman Lohar, they attacked him which further shows that the deceased had identified the culprits. The medical evidence shows that there are 15 incised wounds on the deceased and its infliction must have taken sufficient time which also gave an opportunity to the deceased to identify the culprits. Allah Dad appellant is the cousin of Mst. Gulzar Begum with whom the deceased had illicit connection as is evident from the record. Muhammad Ramzan appellant is a friend of Allah Dad. Allah Dad appellant had a motive for the offence on account of the illicit connection and so in view of the foregoing discussion, we maintain the convictions of Allah Dad and Muhammad Ramzan.

14. The evidence on the record regarding the participation of Salim Akhtar in the commission of the offence is doubtful. Although Salim Akhtar is alleged to have accompanied the two appellants, Allah Dad and Muhammad Ramzan, to the shop of Muhammad Ramzan (P. W. 16) where they lead a cup of tea each, yet, lie was not, introduced by Allah Dad either to the deceased or to Muhammad Ramzan (P. W. 16), Salim Akhtar appellant was neither charged by name in the dying declaration nor by description. It is true that he was identified in the identification parade by the three eye‑witnesses but this is not a conclusive proof of leis guilt. There are scar marks on the face of Salim Akhtar but the Magistrate supers using the identification parade did not take precaution by pasting staking plaster on the face of Salim Akhtar and on the faces of those who were participating in the parade to obliterate the scars and so it is obvious that he was identified by the prosecution witnesses on account of the scars and so we do not rely on the identification parade. There is no conclusive evidence on the record regarding his participation in the commission of the offence and we, therefore, accepted his appeal and set aside his conviction and sentence and had acquitted him by our order dated the 1st of December 1964.

15. In the revision petition for enhancement of the sentences, the learned counsel for the State contended that the sentences awarded to Allah Dad and Muhammad Ramzan are inadequate and the learned Additional Sessions Judge 'was wrong in not awarding the normal penalty. There is some force in the argument of the learned counsel for the State. The two appellants had committed the cold‑blooded and premeditated murder of the deceased by inflicting as many as fifteen incised wounds on him, of which Nos. 4 and 6 were individually and collectively sufficient to cause his death in the ordinary course of nature and, therefore, the normal penalty prescribed by law under section 302, P. P. C. should have been awarded. The learned Additional Sessions Judge observed:‑ "As regards the sentence, the circumstances of the case do not call for the, extreme penalty provided by law, and the sentence of transportation for life in case of all the three accused will meet the ends of justice." The learned Additional Sessions Judge, however failed to mention as to what were the circumstances of the case which did not call for the extreme penalty provided by he law. In our opinion, this is a fit case in which the extreme penalty provided by the law is to be awarded. We, therefore, accept this revision and enhance the sentences of Allah Dad (Dad) and Muhammad Ramzan from transportation for life to death. K. B. A. Appeal dismissed. Sentence enhanced.