NADIR SHAH Versus STATE
ZAKAULLAH LODHI, J.‑‑ The appellants Nadir Shah and Muhammad Shahban were tried for an offence under section 30.2/34, P. P. C. and sentenced to death for the .murders of Ali Sher and Ismail by the learned Sessions Judge, Jacobabad are 23:1‑074. Jahan Shah was also tried along with them for the same offence but h9 was acquitted. The appellants have filed an appeal against their conviction while the learned Sessions Judge has referred their case for confirmation of the death sentence. This judgment will dispose off the appeal and the reference.
2. The prosecution case is that on 6‑6‑1971 at 1‑30 p. m. an F. I. R. was lodged at City Police Station, Jacobabad, which is half a mile away from the scene of occurrence, by Muhammad Hassan (P. W. 6) alleging that he and his brother Muhammad Ismail, who were carpenters by profession and had a shop near old cattle Perhi, had been working at the shop as usual on the day of occurrence. At about I p. m. his cousin Ali Sher, went out with a bucket in his hand to fetch water from a nearby water tap. He returned immediately raising cries of 'Khoon Khoon' and stated that Nadir Shah and his two other companions were firing at him. One Ibrahim Vago who had also come to fetch water raised a 'hakal' saying that "he was the enemy". Ali Sher then entered the shop followed by Nadir Shah and one of his two companions. They fired at Ali Sher. Ghulam Rasool and Muhammad Ismail persuaded them not to kill him, but they warned them to keep away otherwise they would also be killed. His brother Ismail tried to hold Nadir Shah and his accomplice but they fired at him and he was also injured. In all 7 shots were fired which resulted in the instantaneous death of Ali Sher and grievous injuries to Ismail, who was removed to the hospital for treatment. In the F. I. R. it was alleged that about three‑four years back one Aurang Shah used to suspect the deceased Ali Sher of having illicit connec tions with his wife and it was due to this suspicion that Fazal Shah, Hakim Shah, and appellant Nadir Shah had killed Ali Sher's younger brother Allah Bux, but they were let off in that case. It was for the same reason that Nadir Shah and his two unknown companions had killed Ali Sher and caused grievous injuries to his brother, Ismail.
3. The report was recorded by S. I. P. Khalilur Rehman who repaired to the wardat alongwith the complainant and found the dead body of Ali Sher lying on a cot. The deceased had received gunshot injuries. Several empty cartridges of 12 bore were also lying there. One bucket was also lying on the ground. He secured the cartridges, bucket and blood stained earth and prepared a mashirnama (Exh. 34). The dead body of Ali Sher was sent to the Civil Hospital for post‑mortem examination. At the wardat he also recorded the statements of P. Ws. Ibrahim Vago, Ghulam Rasool and Taj Muhammad. The same evening the appellants were arrested and sent to the police station by the Inspector of C. I. A. Police alongwith two guns and cartridges which were also sealed in separate parcels. On 8th June ‑1971, appellant Shahban's confession was recorded by the F. C. M., Jacobabad. An identification test of appellant Shahban through P. Ws. Ghulam Rasool, Muhammad Ibrahim and Taj Muhammad was also held in the presence of a 3rd Class Magistrate, Jacobabad. The statements under section 164, Cr. P. C. of the above said witnesses were also recorded by the F. C. M., Jacobabad. The gun and the cartridges were sent to the ballistic expert for examination while the blood‑stained earth was sent to the Chemical Examiner for analysis.
4. The deceased Muhammad Ismail's dying declaration was also recorded by a 3rd Class Magistrate, the same day at 2 p. m.
5. Autopsy on the dead bodies were performed by Dr. Imdad Ali, who found the following injuries on the person of Muhammad Ismail:
(1) A lacerated punctured type of wound about 4' x 3' x structure deep on right shoulder an interiorly with blackening and charring present with fracture of right clavicle right scapula first and second ribs (wound of entrance).
(2) Three lacerated puncture type of wounds of upper back about ' in diameter each (wound of exit), with averted margins.
(3) An abrasion about 1‑ 1 above left eye‑brow.
On the person of Ali Sher, 7 injuries as detailed below were found:‑
(1) 2 lacerated punctured wounds 1 in diameter each on left lumber region and lower part of left side of back of chest, with blackening and charring into cavity deep (wounds of entrance).
(2) A lacerated punctured wound 2‑1/2 in diameter on the left hypocordion into cavity deep. Omentun protuding out of the wound (wound of exit).
(3) 8 lacerated punctured wounds 1/4' in diameter with blackening and charring left side of (abdomen wound of entrance).
(4) 7 lacerated punctured wounds 1/4' in diameter each with blackening and charring right side abdomen (wound of entrance).
(5) 2 lacerated punctured type of wounds 1/4' in diameter each with blackening and charring on postero lateral aspect of upper arm with fracture of left humerus bone (wound of entrance).
(6) A lacerated punctured type of wounds 2' x 2' over inner side of left upper arm (wound of exit).
(7) A lacerated punctured type of wound 1/4' in diameter just medial to injury No. 2 (wound of exit).
In the opinion of the doctor the death of both the deceased was due to shock and haemorrhage as a consequence of the gunshot injuries received by them.
6. In their defence the appellants have denied having committed the offence. Nadir Shah teas stated that he had been involved in the case due to enmity whereas Muhammad Shahban has stated that he had filed a corruption case against the S. I. of Police Mr. Barkhurdar and, therefore, the police had falsely involved him in the case.
7. The prosecution examined Muhammad Hassan, Taj Muhammad, Muhammad Ibrahim and Ghulam Rasool to furnish direct evidence in the case. Apart from the ocular testimony, there is also the dying declaration of Ismail and confession of Shahban.
8. While deceased Ismail is the brother of Muhammad Hassan, Ali Sher is his cousin and Ghulam Rasool is his massat. Taj Muhammad is Dayo by caste and is not related to the deceased. Muhammad Ibrahim is also of different caste and is not related, to the deceased. Appellants Nadir Shah and Shahban are of different castes and not related to each other.
8‑A. According to the version in the F. I. R. Ali Sher was fired at when he had gone to fetch water from a tap which was 50 paces away from the shop whereafter he returned crying 'Khoon Khoon' and no sooner did he enter the shop, the appellant Nadir Shah and his two companions followed him while the third, who was empty‑handed, stood outside the shop. Those who followed fired at Ali Sher. Muhammad Ismail, who intervened, was also shot at twice. Thereafter, Nadir Shah and his companions, namely Shahban and the acquitted accused Jahan Shah escaped. Muhammad Hassan, who had lodged the first information report, gave the same version but Taj Muhammad, who on hearing the gun reports went towards the shop, spoke about "two persons" firing the guns. He also admitted the presence of Ghulam Rasool, Muhammad Hassan and Ibrahim but stated that none of the witnesses told him that they had identified the assailants of the two deceased. He was put to identification test of Shahban whom he picked out but again admitted that he was shown to him before the parade. His admission makes the identification useless. His stand, at the trial, cannot be regarded as one in support of the prosecution case and he was declared hostile and cross‑examined. He even went to the extent of admitting that the persons who were running away after firing the gun shots had muted faces and that this fact was also disclosed to him not only by the complainant Muhammad Hassan but also by Ibrahim and Ghulam Rasool; therefore, no reliance can be placed on his evidence, As for Muhammad Ibrahim, he spoke of the incident at the water pump as he had himself gone to fetch water from the water tap. He claims to have identified Nadir Shah and Shahban though Shahban was not known to him from before. He also stated that they fired at Ali Sher who ran towards his shop. Apparently, if according to Muhammad and Ibrahim he had fired earlier how is it that he escaped the gunshot injuries which is a mystery. He also identified Shahban at the identification parade. After having so deposed he stated that he had hid himself in the shop of Taj Muhammad. Obviously, he could not have then witnessed the incident. He also stated that when he came out of the shop, Muhammad Hassan told him that "some Syeds have killed Ali Sher", without giving the names of those Syeds. Others, who had assembled there, also told that it were Syeds who had killed the deceased. He also admitted that the faces of the two assailants were muffled with their turbans. He then admitted that Muhammad Hassan had given out the game of Nadir Shah and that the faces of the culprits were partly muffled and partly open. Hardly such an evidence can be worthy of any credence. At every stage, in his version, the witness had tried to accommodate not only the prosecution but also the defence. At least Taj Muhammad and Ibrahim are disinterested witnesses, but their evidence can lend no assurance to the prosecution. Ghulam Rasool, who is related to the deceased, had done no better. According to him, he was sleeping on a cot in the shop of Ali Sher when the incident occurred. He also spoke of the shot having been earlier fired when Ali Sher had gone out to fetch water. He only gave out the name of Nadir Shah. In the cross-examination, he was also put to identification test and he picked out Nadir Shah. In the cross examination, he was confronted with his admission in the committal Court s deposition in which he had stated that he did not identify any of the accused as they were not known to him previously. Again in the committal Court, be picked out only Shahban and as for the other accused namely Nadir Shah and the acquitted accused, Jahan Shah, he gave out that he had not, seen them at the time of incident. Lastly, he was confronted with his committal Court statement in which he admitted that his statement under section 164 Cr. P. C. was written down in Court at the dictation of the S. H. O. by a clerk. He also stated therein that he could not identify any of the assailants. viewed from his admissions, no reliance can be placed on his evidence and his testimony cannot be taken to corroborate the prosecution case.
9. The enmity alleged both in the F. I. R. and in the testimony of Muhammad Hassan is that Nadir Shah suspected deceased Ali Sher of illicit intimacy with Fazal Shah's daughter and, therefore, Allah Bux who was the younger brother of Ali Sher, was killed by Hakim Shah, Fazal Shah and Nadir Shah. It is this suspicion which again led to the murder of Alt Sher and Ismail as he had intervened to save Ali Sher. Surprisingly enough, Ismail has given out different enmity in the dying declaration and it is that last year Nadir Shah suspected his cousin Ali Muhammad to be on illicit terms with his wife and it was, therefore, that he had fired at him and Ali Sher. Obviously, the motive given by Muhammad Hassan cannot be true if reliance is to be placed on the dying declaration of Ismail which is also dubious. Again it is in the evidence that Nadir Shah used to visit Fazal Shah who had an oil crushing machine just near the shop. Allah Bux was murdered about five or six years before. Assuming, therefore, that Nadir Shah had suspected the liaison of Allah Bux with Fazal Shah's daughter then that was a closed chapter as Allah Bux had been murdered and if at all that animus was still there then Nadir Shah could have murdered Ali Sher even much earlier than the present incident. Therefore, the motive assigned in the F. I. R. and by Muhammad Hassan in Court does not hold water.
10. Again there is a conflict between the dying declaration of Ismail and the testimony of Muhammad Hassan. In the dying declaration there is no reference to the earlier incident of firing when Ali Sher had gone to fetch water. If that incident had occurred then there was no reason why he would have omitted to mention it. Again the name of Ali Sher is not correctly mentioned as by mistake 'Muhammad' was recorded instead of Sher.
11. Learned counsel for the appellant argued that it was also doubtful whether Ismail was in senses to make a declaration having regard to his condition after receiving the gunshot injuries. He referred us to the medical evidence which is thus stated:--
"Symptoms observed before death were feeble pulse, gasping respiration, Blood pressure not recordable, patient semi‑conscious, pupils slightly reacting to light."
According to the learned counsel, the medical evidence shows that the deceased was about to die and in such state it will not be possible for any one to give a statement. The dying declaration was recorded at 2 p.m. within an hour of the incident and his condition was shown to be precarious. Though the doctor has given a certificate that be was in senses, the prosecu tion has not proved it by putting that statement to the doctor when he was examined. In the circumstances, therefore, it is doubtful whether the deceased was in a state of mind to give such a statement.
12. Lastly is the confession of Shahban which is self‑exculpatory. The law is that he must tar himself with the same brush otherwise the confession is of no value. The learned State counsel conceded that neither reliance should be placed on the dying declaration nor on the confession.
13. There only remains the ocular testimony of Muhammad Hassan who cannot be described but an interested witness with the background of enmity. The seven crime empties alleged to have been recovered and which could have provided corroboration, did not match with the guns of Shahban and Nadir Shah. There is, therefore, no corroborative evidence to support the ocular testimony of Muhammad Hassan. It is, therefore, not possible to sustain the conviction on a capital charge on the evidence of Muhammad Hassan which cannot be regarded as unimpeachable.
14. We would accordingly give the benefit of doubt to the appellants and acquit them. They should be released forthwith unless required in connection with some other case.
Appeal accepted.