SHAHDAD Versus STATE
Appellant abovenamed, being aggrieved by judgment, dated 27th January, .1979 of the learned 1st Additional Sessions Judge, Sukkur, in Sessions Case No. 1099/75, whereby appellant has been convicted under section 302, P.P.C. and sentenced to transportation for life and a fine of Rs. 5,000 or in default to suffer further R.1. for one year, ha= preferred the above appeal, on the following facts and grounds:-
2. The prosecution case as briefly disclosed in the F.I.R. dated 4th January, 1972, lodged at Mirpur Mathelo Police Station, by complainant Mst. Malookan the mother of deceased Ghulam Nabi, is, that on the day of incident at morning time, she alongwith her son Ghulam Nabi were going to village Garhi Chakar for taking grass from Sardar Muhammad Khan Bozdar's land. When they reached near the tubewell, appellant, Shahdad having single barrel gun alongwith another person with empty handed came there and challenged Ghulam Nabi, that they will not spare him. Ghulam Nabi started running but Shahdad appellant fired two gun shots at him, who fell down. It is further alleged that complainant another son Ghulam Rasool with Saifal Bozdar were also coming behind them who reached there, whereupon the culprits ran away towards west. Ghulam Nabi, who had sustained injuries narrated the facts to them. It is alleged in the F.I.R., that about 4/5 years prior to this incident Shahdad had filed a case for unnatural offence against deceased Ghulam Nabi in which he was convicted and due to that enmity Shahdad wanted to murder him. Injured Ghulam Nabi was then taken to the hospital, while Mst. Malookan lodged her report on the basis of which, a case under section 307/34, P.P.C, was registered against the culprits.
3. The above report was taken down by A.S.I. Ghulam Shabir P.W. 11 at 3-40 p.m., which report is Exh.7. According to Ghulam Nabi his deposition Exh. 32, he was told that injured Ghulam Nabi was already removed to hospital at Mirpur Mathelo. He went to the hospital and prepared injuries report vide memo. Exh.
11. He also secured the shirt and loin-cloth in the presence of Mashir vide memo Exh.
10. Ghulam Nabi injured at that time was conscious, so he wrote a letter to the Civil Judge and F.C.M. Mirpur Mathelo for recording his dying declaration. He has produced the letter as Exh.
33. Mr. Abdul Hameed Abro Civil Judge and F.C.M. came to the hospital within 15 minutes and he recorded the dying declaration of injured Ghulam Nabi which is Exh 31. The injured was then removed to Civil Hospital Sukkur, for treatment. On the same evening, he recorded the statements of P.W. Saifal and Ghulam Rasool, the two eye-witnesses. Since it had become dark, he did not to the Vardat, but early in the morning visited Vardat where he prepares a Mashirnama of the scene of occurrence in the presence of Mashirs Abdullah and Gul Sher. He collected the blood-stained earth from the Vardat and one empty cartridge which were sealed and made into parcel, vide Mashirnama Exh.22. He came back to the police station aid receives' the medical certificate of the doctor of Mirpur Mathelo. He has further deposed, that he then received telephonic message from Police Station 'C' section Sukkur, about the death of injured Ghulam Nabi in Sukkur Civil Hospital. He then converted the offence from 307, P.P.C. to 302, P.P.C. He was further informed by 'C' section police station, that A.S Muhammad, Ilyas (now dead) had already gone to hospital and had prepared the inquest report of the dead body which is Exh. 12 and the Mashirnama injuries of the dead body vide Exh 13 both in the handwriting of A.S.I. Muhammad Ilyas, with whose signature he was familiar. On 5th January, 1972, Ghulam Shabbir handed over the police papers to Station House Officer Manzoor Ali Wagan for further investigation. While the investigation was with Mansoor Ali S.I.P, Ghulam Shabbir A.S.I. was directed on 10th January, 1972, to arrange for the identification parade of Karimadad co-accused and produced him and the witnesses before head Munshi and Magistrate IIIrd class. The identification test memo. is Exh.
18. On 11th January, 1972, he has got the statement of witnesses recorded under section 164, Cr.P.C. by Civil Judge and F.C.M. Mirpur Mathelo. He identified the clothes of deceased Article 'A', blood-stained earth article 'B' and crime empty article 'C'.
4. The remaining investigation was conducted by S.I.P. Manzoor Ali who had taken over the investigation already conducted by Ghulam Shabbir and on 9th January, 1972, he arrested appellant Shahdad from his village in the presence of Mashir Abdullah and Gul Sher, vide Mashirnama of arrest Exh.
23. On the same day appellant Shahdad led the police party and the two Mashirs to his house, where from he dug out and produced one single barrel gun, which he had buried in a room. He secured the gun in the presence of the Mashirs vide Mashirnama Exh.
24. He also arrested appellant Karimdad vide Mashirnama Exh. 28, and got his identifi cation test held. On 12th January, 1972 he recorded the statement of P.W. Khan Muhammad and Ghulam. He then sent the blood-stained earth to the Chemical Examiner and produced his report in Court Exh. 29, which is in positive. After completing the investigation, he submitted two challans against the appellant. He also produced the report of Ballistic Expert Exh. 29-A, which shows that the crime empty found from the Vardat was fired from the single barrel gun recovered from the house of appellant Shahdad.
5. The case has proceeded in the lower Court, and the evidence of eye-witnesses was recorded, when after the enforcement of law Reforms Ordinance, the case was sent upto the Court of Sessions.
6. At the trial before the lower Court, the prosecution in support of its case had examined P.W.1 Mst. Malookan, P.W.2 Saifal P.W. 3 Rasool Bux, P.W. 4 Dr. Khan Muhammad, P.W.5 Jamaluddin Head Munshi P.W.6 Fateh Muhammad. Tapedar, P.W.7 Gul Sher Mashir, P.W.8 Ghulam Rasool eye-witness, P.W.9 Manzoor Ali S.H.O. P.W.10 Abdul Hameed Abro, Civil Judge and F.C.M. P.W.11 A.S.I. Ghulam Shabbir. Two Court witnesses namely Iddan Ali Mangi, Reader of the Court and Shahid All, Record-keeper were examined to prove the loss of the lower Court depositions and production of certified copies of deposition of Mst. Malookan and Saifal from the file of bail application.
7. The appellant Shahdad had denied the prosecution allegation and also the recovery of the gun from his house and pleaded innocence. Similarly appellant Karimdad also denied the prosecution story. Both the appellant and co-accused did not examine any witness in their defence.
8. The learned trial Court taking into consideration the evidence adduced before it, while acquitting the co-accused Karimdad, son of Bacho, convicted the appellant abovenamed as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.
9. The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That P.W.1 Mst. Malookan, P.W.8 Ghulam Rasool, the alleged eye witnesses of the incident were disbelieved by the learned trial Court.
(b) That the dying declaration of the deceased ought to have been discarded by the learned trial Court, in view of character of the deceased as brought on record through P.Ws. as well as on account of the fact that before recording of the dying declaration no certi ficate from the medical officer was obtained by the Magistrate. In addition to this the learned Magistrate has admitted, in his statement before the learned trial Court, that a relation of the deceased was with the deceased at the time of recording of his dying declaration and as such it cannot be ruled out, that the said dying declaration was prompted by such relation, specially in the face of admitted enmity between the parties. In support of these contentions the learned Advocate for the appellant relied upon cases reported in P L D 1970 S C 13, P L D 1977 S C 612, 1979 P Cr. L J 496 and P L D 1978 Kar. 710.
(c) That since the prosecution eye-witnesses were disbelieved by the learned trial Court and rightly so their statements regarding what they were told by the deceased ought not to have been taken into consideration by the learned trial Court. In support of this contention the learned Advocate for the appellant relied upon case reported in P L D 1958 S C 242.
(d) That the condition of the deceased according to the medical evidence on record, was not fit and as such no reliance ought to have been placed on the dying declaration of the deceased. In support of this contention the learned Advocate for the appellant relied upon case reported in 1981 S C M R 132.
(e) That the recoveries ought, to have been discarded, as P.W. Gul Sher was the son-in-law of the complainant and co-Mashie Abdullah though not examined, was also related as both these Mashirs were not the residents of the locality and admittedly they were staying four miles away from the place of recovery in view of the fact that the village in which the. appellant resided consists of more than 100 houses and as such respectable independent Mashies of the locality could have been available, but the police made no attempt even to call them. In support of this contention the learned Advocate for the appellant relied upon cases reported in 1974 P Cr. L J 37 and 1980 S C M R 1.
(f) That the empty recovered from the Vardat was not sent separately to the Ballistic Expert, but admittedly said empty was sent together with the gun in question and as such no reliance can be placed on the Ballistic Expert's report. In support of this contention the learned Advocate for the appellant relied upon case reported in P L D 1968 Lah. 869.
10. The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment and in addition to this the learned Advocate for the State submitted as under:-
(a) That the learned trial Court erroneously discarded evidence of three eye-witnesses, without realising that on account of the lapse of time discrepancies in thier statements were not unusual in ordinary course of circumstances. In support of this contention the learned Advocate for the State relied upon case reported in P L D 1977 S C 557.
(b) That the statement of P.W. Mst. Malookan, the mother of the deceased against whom- no enmity is alleged is straightforward and convincing and as such the same has been wrongly discarded and could have formed the basis of the conviction of the appellant.
(c) That the dying declaration of the deceased was recorded by the learned Magistrate, against whom no enmity is alleged and as such the same has been rightly acted upon by the learned trial Court and the authorities cited by the learned Advocate for the appellant are based on different facts and as such not at all applicable to this dying declaration.
(d) That the recoveries made from the appellant had been fully supported by P.W.7 Gul Sher, and the mere fact that he is related to both the parties, by itself is no ground for discarding his statement, specially as the same has been fully corroborated by 1.0. The case reported in P L D 1968 Lah. 869, cited by the learned Advocate for the appellant is not at all applicable to the present case.
(e) That there is nothing on record to show, that the deceased was of a bad character and furthermore the alleged conviction of the deceased in certain cases is not proved, as no certified copies of the said judgments have been produced and as such the authorities cited by the learned Advocate for the appellant in respect of the dying declaration are not at all applicable to the present case.
11. I have carefully considered the above submissions made by the learned Advocate, before me and have gone through the R & P of the learned trial Court as well as the impugned judgment and the cases cited by the learned Advocates before me.
12. I find from the impugned judgment, that the learned trial Court has duly appraised the statements of alleged three eye-witnesses and for cogent reasons discarded their statements. The contention of the learned Advocate for the State, that the statement of these three eye-witnesses were wrongly discarded by the learned trial Court, as discrepancies and contradictions in their statements, brought on record were due to lapse of time in my opinion has no force at all. The case reported in P L D 1977 S C 557, on which the learned Advocate for the State has relied is not applicable to this case, as facts of the said case were quite different from the facts of the present case, on the basis of which their statements have been discarded by the learned lower Court.
13. I have carefully gone through the dying declaration of the deceased as well as cross-examination of P.W.1 Malookan, in which she has admitted, that deceased was previous convict. Deceased in his said dying declaration has also admitted enmity with the appellant over previous case, which was according to him motive of the incident. The learned Magistrate, before recording dying declaration did not obtain certificate of Doctor, about the fitness of the deceased to make such statement. In addition to this, at the time, when deceased is alleged to have given dying declaration, his relative was with him, according to learned Magistrate. I further find from 164, Cr.P.C. statement of P.W. Ghulam Rasool, which has been brought on record as Exh. 26, that in cross-examination, this witness had stated, that he had accompanied deceased to hospital and remained with him till he died and during this time deceased did not regain consciousness in hospital. In view of all these facts on record. In find great force in the contention of the learned Advocate for the appellant that no reliance can be placed on such dying declaration and cases cited by the learned Advocate for the appellant in this connection are applicable to this dying declaration, in my opinion. In view of this, I see no force in the contentions of- the learned Advocate for the State, that learned trial Court has rightly relied upon the said dying declaration.
14. I also find great force in the contention of the learned Advocate I for the appellant, that no reliance can be placed on allege recovery of gun, as Mashirs of said recovery were not the residents of the locality, on their own admission, besides being related to the complainant side. It is obvious, that mandatory provisions of section 103, Cr.P.C. were violated by 1.0. for which he has given no cogent reasons and as such cases cited by the learned Advocate for the appellant in this connection are fully applicable to these recoveries and as such in my opinion no reliance can be placed on such recoveries. In addition to this, it is admitted position that empty recovered from vardat , was not sent immediately and separately to the Ballistic Expert and consequently case reported in P L D 1968 Lah. 869 relied upon by the learned Advocate for the appellant is fully applicable to the said report.
15. In view of my above conclusions in respect of dying declaration and recoveries, the very basis of the conviction of the appellant, by impugned judgment disappears.
16. Therefore, I allow the above appeal and set aside the conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant, in above appeal.
M. Y. H. Appeal allowed.