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Petitioner: MUHAMMAD KHAN AND OIHERS VS Respondent: THE STATE
P L D 1961 (W
P L D 1961 (W. P.) Lahore 936
Before Shabir Ahmad, Ortcheson and Muhammad Yaqub Ali, JJ
MUHAMMAD KHAN AND OIHERS‑---Appellants
versus
THE STATE‑----Respondent
Criminal Appeal No. 114 of 1961, decided on 25th August 1961.
(a) Dying declaration‑Large number (10) of culprits named Delay (24 hours after incident) Declaration not necessarily unreliable‑Weight to be attached depends upon circumstances of each case‑Evidence Act (I of 1872), S. 32.
[On difference of views between Ortcheson, J. and Yaqub Ali, J.) (Opinion of Shabir Amad, J. agreeing with Yaqub All, J.)]
What weight should be attached to a particular dying declara tion must necessarily depends on the circumstances of the case.
If the person who made a dying declaration was of unques tionable integrity the fact that the number (10) of persons mentioned as culprits by him in his dying declaration was large would not by itself suffice as a ground for rejecting it.
The dictum that if a dying declaration is recorded with delay it must be rejected, cannot be accepted.
At the same time if a dying declaration is recorded with unexplained delay, it should not generally be considered reliable.
It was held in this case that the lapse of 24 hours after the incident did not mean that the dying declaration suffered from the defect that it was recorded with unnecessary delay.
Khurshid Hussain Salihon Shah and others v. Emperor A I R 1941 Lah. 368. Considered. Also see.
Contrary view of Ortcheson, J.
(b) Dying declaration‑Recorded "24 hours" after incident and "one hour" before death, by "man of 65," having suffered gunshot wounds which had "pierced liver and peritoneum", declarant being in "condition of severe shock" and "pulse so weak that it could not be counted"‑Naming ten out of seventeen mentioned in F. I. R. Held: there was no ground for doubting correctness of declaration (Per Shabir Ahmad, J., agreeing with Yaqub Ali, J, Ortcheson, J. contra)‑Evidence Act (1 of 1872), S. 32:
(c) Witness ‑‑ Close relative of accused naming them in murder trial‑Witness not taken to have named accused falsely.
(d) Dying declaration‑Used as corroboration of statements of eye‑witnesses‑Evidence Act (1 of 1872), S. 32.
(e) Criminal trial‑ Conviction‑ Punishment‑Administrative or law and order considerations‑Irrelevant in determining guilt or otherwise of accused, though relevant in awarding punishment.
(f) Weapons‑Not linked with offence‑Recoveries at instance of accused‑Whether rightly disregarded‑Evidence Act (1 of 1872), S. 27.
Sh. Shaukat Ali for Appellants.
Islam‑ul‑Haq for A. G. for Respondents.
Dates of hearing: (before‑ D. B.): 1st, 2nd, 6th and 30th June, 1961. Before Shabir Ahmad, J.: 31st July 1961.
JUDGMENT
ORTCHESON, J.‑---Muhammad Khan, aged 45 years, Sharif, aged 28 years, Nishan Ali, aged 50 years, Kafayat Ali, aged 55 years, Karam Ali, aged 60 years, Samundar Khan, aged 30 years, Muhammad Afsar, aged 26 years, Muhammad Fazil, aged 22 years, and Gulzar, aged 55 years, have been convicted and sentenced by the learned Sessions Judge, Jhelum, by order dated the 1st of February 1961 as under :‑
(i) Muhammad Khan under section 302/149, P. P. C. to death f or the murder of Zaman Khan and to transportation for life for the murder of Ghulam Muhammad;
(ii) Muhammad Sharif under section 302/149, P. P. C. to death for the murder of Ghulam Muhammad and to transportation for life for the murder of Zaman Khan;
(iii) the remaining seven appellants under section 302/149, P. P. C. to transportation for life each on two counts for the murders of Zaman Khan and Ghulam Muhammad;
(iv) all nine appellants to eight years' rigorous imprisonment each under section 307/149 P. P. C. for the attempted murders of Khuda Baksh, Saif Ali, Muhammad Azam and Faiz Ali P. Ws. ; and
(v) all nine appellants under section 148, P: P. C. to three years rigorous imprisonment each.
In the case of the seven appellants sentenced to transportation for life under section 302/ 149, P. P. C. the sentences for all the offences of which they have been found guilty were ordered to run concur rently, while the same order was passed with respect to Muhammad Khan and Muhammad Sharif if the sentences of death should not be confirmed by this Court.
2. Seven other persons were jointly tried with the appellants but were given the benefit of the doubt by the learned Sessions Judge and acquitted. One Resham, who is also alleged to have taken part in the occurrence, is or was absconding.
3. The convicts have appealed and the case is also before us under section 374, Cr. P. C. for confirmation of the sentences of death passed on Muhammad Khan and Muhammad Sharif. This order will dispose of both the appeal and the reference:
4. All the appellants, who are residents of village Chhoi Jandran, Tehsil Pind Dadan Khan, are inter‑related as are the principal eye‑witnesses with the exception of Khuda Baksh (P. W. 24). Zaman Khan deceased was also related to these witnesses, who are themselves related to the appellants. The long and somewhat complicated relationships are given in detail in the judgment of the learned Sessions Judge and need not be here repeated.
5. Ghulam Muhammad deceased, Khuda Bakhsh P. W. and one Buta, who reside in other villages, were on friendly terms with Feroze Khan (P. W. 19) and on the 18th of February 1960 paid him a visit. The following day, at about digarwela Feroze Khan, Ghulam Muhammad, Buta and Muhammad Azam (P. W. 21) were sitting at the house of one Muhammad Afzal when they heard some person shouting." On climbing on to the roof of Muhammad Afzal's cattle‑shed, where they found Zaman Khan deceased and Saif Ali (P. W. 22) already present, they saw the appellants and their eight companions at a distance of about 35 yards in an open field near the house of one Alam Sher. Resham was carrying a pistol in his hand and had a jhola hanging from his shoulder. Samundar Khan, Karam Ali and Muhammad Afsar were armed with pistols, while Samundar Khan and Karam Ali were in addition carrying hand‑grenades. Sharif; Gulzar and Muhammad Khan had rifles, Kafayat Ali a Sten gun, Banaras a hand‑grenade and the others hatchets. All seventeen climbed on to the roof of Alain Sher's house and from there passed to that of Gulsher (P. W. 23), a brother of Alain Sher. The two deceased and their companions tried to escape on to the roof of the kotha of Ahmad Khan (P. W. 14) between which and Muhammad Afzal's cattle‑shed is a small kotha belonging to one Farman Ali, Faiz Ali (P. W. 20), who had been sitting in his sister's house near that of Muhammad Afzal, joined the others on the roof of Ahmad Khan's kotha. On seeing them, Resham absconder threw a hand‑grenade in their direction, but it luckily only hit the parapet wall of the kolha and dropped into Farman Ali's courtyard. Those of assailants who were carrying rifles and pistols then opened fire. Khuda Bakhsh P. W., who is the brother of one Nadir and had been sitting in the latter's kotha, climbed on to the roof on hearing the firing and was hit. Although he himself does not name his assailant, the shot is alleged to have been fired by Gulzar appellant. The shots fired by Sharif, Muhammad Khan and Samundar Khan and a second shot fired by Gulzartit Ghulam Muhammad deceased, Zaman Khan deceased, Muhammad Azam P. W. and Saif Ali P. W., respectively.
6. Ghulam Muhammad deceased was carried by Faiz Ali P. W. to Feroze Khan's kotha. Feroze Khan himself running into the courtyard of Muzafar Khan (P. W. 26). Saif Ali had become unconscious on being hit and remained lying on the roof of Ahmad Khan's kotha. From Muzaffar Khan's courtyard, Feroze Khan saw Sawar, Fazil, Riasat and Mahra accused dig a hole in the roof of his kotha, through which Resham and Karam Ali threw hand‑grenades into the room. He himself managed to escape and to reach Police Station Kallar Kahar, at a distance of eight miles from Chhoi Jandran, where, he lodged the first information report Exh. P. A. at 11 p. m.
7. After recording the report, Raja Amir Muhammad S.H.O. (P. W. 28) went to the spot, where he found the dead bob; of Ghulam Muhammad lying on a charpoy in Feroze Khan's kotha. Three pieces of hand‑grenade and a spring Exh. P. 8 were recovered from the charpoy. Zaman Khan, who was then still alive, Muhammad Azam, Saif Ali, Faiz Ali and Khuda Bakhsh were sent for medical examination to Chakwal. Thirty‑two pieces of shrapnel, a lever and the base‑plug of a hand‑grenade (Exh. P.9) were recovered from Farman Ali's courtyard.
8. A number of the accused were arrested on the 29th of February and in the course of interrogation on the 16th of March, Karam Ali, Gulzar, Muhammad Afsar Kafayat Ali and Muhammad Khan led a party including the Sub‑Inspector to their respective houses. From that of Karam Ali were recovered a hand‑grenade and a fuse (Exhs. P. 20); from that of Gulzar a rifle, three misfired and two live cartridges (Exh. P. 21) ; from that of Muhammad' Afsar a pistol (Exh. P. 22), a live bullet and three misfired cartridges (Exhs. P. 23 to 25), from that of Kafayat Ali a sten‑gun (Exh. P. 26) and six bullets (Exhs. P. 27 to P. 32) and from that of Muhammad Khan a licensed shot‑gun (Exh. P. 33) and a license (Exh. P. 34). Muhammad Sharif led the ‑ party to the house of his maternal uncle, Sher Mulk, from which he produced the rifle Exh. P. 35, four empties, two misfired and one live cartridge (Exhs. P. 36 to P. 42).
9. From inside the room into which the hand‑grenades are stated to have been thrown, the investigating, officer recovered four metal utensils Exhs. P. 3 to P. 6, one of which was riddled with holes, while the others had also been pierced by fragments of metal. Some pieces of hand‑grenade were also found sticking in the charpoy and shrapnel marks were seen on the walls.
10. On his admission to hospital the statement of Zaman Khan (Exh. P. V.) was recorded by Malik Abdul Ghafur, Naib Tehsildar (P. W. 11). In this document Zaman Khan ascribes the injury found on him to Muhammad Khan appellant.
11. It maybe mentioned here that Malik Abdul Ghafur also recorded the statements of Khuda Bakhsh and Saif Ali P. Ws. (Exhs. P. X. and P. Y.) respectively, presumably as dying declarations.
12. The post‑mortem examinations of the bodies of the deceased were carried out by Dr. Akhtar Alim (P. W. 1). Ghulam Muhammad had the following injuries‑:‑
(1) A firearm wound " x " x 3", on the left cheek, " in front of the left ear with inverted margins, with fracture of the niandible and an iron piece was recovered from the wound.
(2) (a) A firearm wound, " x 1/3" and entering the chest with inverted margins, on the front of left chest " above the middle of left clavicle.
(b) A firearm exit wound, 1 " x 1", with everted margins on the back of left chest, 3" below the top of left shoulder and 5" to the left of vertebral column with piercing of the upper part of left scapula. On dissection first and second ribs on left side were found fractured at their back. Plesura was pierced on left side and thoracic cavity was full with blood. The apex of the left lung was found pierced and the left sub- clavian artery was found pierced. The rest of the organs were found healthy. Stomach was found empty and the small intestines contained digested food.
Death was due to shock and haemorrhage from the cutting of the sub‑clavian artery. The piece of metal referred to under injury No. 1 was later found by the expert to be a remnant of an exploded hand‑grenade (vide letter Exh: P. V. V.).
13. Zaman Khan had two firearm wounds, one of entry, 1/5" x 1/5", on the opigastric region and the other of exit, " x 1/3", on the left side of the chest. The peritoneum and the liver had been pierced, the injury being sufficient in the ordinary course of nature to cause death.
14. The same doctor examined Khuda Bakhsh, Saif Ali, Muhammad Azam and Faiz Ali P. Ws. Khuda Bakhsh had two firearm wounds, the first, " x 1/3", with inverted edges, on the front and inner aspect of the right thigh, and the other, 5 " x 2 ", with everted edges, on the back of the left thigh. This injury is described by the doctor as the exit wound corresponding to the first, grid muscles and other tissues ‑of the thigh were protruding. Saif Ali bad two firearm wounds, 1/3" x 1/3" and 3/4" x ", on the font of the right side of the chest and the back of the left side of the chest respectively, and a lacerated wound, " x 1/3', skin deep, op the left angle of the mouth. Muhammad Azam had three firearm wounds, " x ", " x 1/3", and 1 " x 1", on the anterior of the left axilla, the medial border of the left axilla and the back of the left side of the chest respectively. Faiz Ali had a wound, 1/8" x 1/8" x ", on the inner aspect of the right thigh. All the above injuries, are described by the doctor as simple.
15. The motive alleged by the prosecution for the murders‑is that some 8 or 9 years previously Feroze P. W. had thrown hand grenades at Resham absconder. He, Azam and Saif Ali P. Ws. and several others were tried for that offence but Feroze was acquitted Further, nine months before the present occurrence, Resham absconder, Karam Ali, Samundar and Gulzar appellants, and two others gave a beating to Feroze and broke his leg. As a result of the ensuing trial, Samundar and one other of the accused were acquitted, the rest being convictcd and fined.
16. The appellants and their co‑accused pleaded not guilty and ascribed the case to enmity. They led no evidence in defence.
17. In his judgment the learned Sessions Judge held that with the exception of Khuda Bakhsh, who, as already stated, did not name any of the offenders, the prosecution witnesses were not only inter‑related but inimical to the appellants and that consequently no reliance could be placed on their testimony unless it was corroborated by independent evidence. That corroboration was, in the opinion of the learned Sessions Judge, supplied by the medical evidence and by what he somewhat vaguely refers to as "the circumstantial evidence on the record'‑". It appears, however, that his conviction of the nine appellants is largely based on Zaman Khan's dying declaration (Exh. P.V.). After giving an English translation of the dying declaration, which runs as follows :‑
"Yesterday, at digarwela, Resham son of Muhammad Ali, Nishan Khan son of Muhammad Ali, Kafayat Ali son of Muhammad Ali, Karam Ali son of Nawab Ali, sharif son of Nawab Ali; Samundar Khan son of Shahwali, Muhammad Khan son of Sattara, Muhammad Afsar son of Shahwali and Muhammad Fazil son of Saparas and others attacked the house of my son‑in‑law, Muhammad Afzal. I ran and climbed on to the roof of the kotha. Muhammad Khan son of Sattara fired a shot, which hit me in my stomach. Saarif son of Nawab Ali also fired a shot which hit Ghulam Muhammad and thus murdered him. The shot fired by Gulzar Khan hit Saif Ali. Muhammad Azam was hit by a shot fired by Samundar Khan. The women (sic) took me in an injured condition to my house. Before this, these accused had broken the leg of Feroze Khan. That incident was the cause of enmity for the accused."
The learned Sessions Judge remarks: "From the above, it is clear that Zaman Khan deceased has named only 10 persons including Resham absconder. In other words, he has only men tioned the names of nine accused persons (the names are then given). Out of them, he has implicated Muhammad Khan, Sharif, Gulzar and Samundar as having actually fired the shots, which caused injuries. He, however, did not describe as, to how and by whom Khuda Baksh P. W. was hit. It is quite understandable for him to have missed this part of the occurrence when so many shots were fired and that Khuda Bakhsh P. W., who was not standing on the same roof with him, was standing on another roof away from him, when he was hit. Therefore it can be safely assumed that at least the afore‑mentioned nine accused took part in the occurrence and I hold accordingly."
18. The view of the learned Sessions Judge that taking into account the fact that with the exception of Khuda Bakhsh, who has not helped the prosecution so far as the identity of the assailants is concerned, all the eye‑witnesses are not only inter related but inimical to the appellants, reliable corroboration of their evidence is necessary, is undoubtedly correct, but it remains to be seen whether such corroboration can be held to be provided by Zaman Khan's dying declaration. It is true that there is no, rule of law that corroboration of a dying declaration is required, and that the facts of each particular case must be taken into consideration, but the following observations of the learned Judges in Khurshid Hussain Salihon Shah v. Emperor (A I R 1941 Lah. 368) are very relevant: ‑
"But assuming that there was only one dying declaration which could not be criticised which accused as many as seven persons we consider it would be unsafe in this province to act on such evidence alone without material corroboration of it. The fact that A. S. Ali, or indeed any other Punjabi in the same circumstances, had been killed would be quite sufficient cause for the dying man to seek to be revenged against as many relatives of his assailant as possible. This Court has frequently remarked that a dying declaration which names only one person and where the killing took place under circumstances where there could be no doubt that the dying man identified his assailant, is the very strongest possible form of evidence: In a case like this however where a large number of people are implicated it is a very different matter and we have no hesitation in holding that, there being no corroboration of the dying declaration, the evidence in this case is insufficient to prove a charge of murder."
19. Again, reference may also with advantage be made to the following remarks in Khushal Rao v. State of Bombay (P L D 1958 S C (Ind.) 203): ---
"It may also be shown by evidence that‑ a dying declaration is not reliable because it was not made at' the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood, was ebbing away."
20. The observations made in the above two authorities apply with full force to the circumstances of the present case. Zaman Khan deceased was himself related to the eye‑witnesses and inimical to the appellants, and the number of persons named in the dying declaration is no fewer than ten. The dying declaration was also not recorded at the earliest opportunity. Although the occurrence took place at digarwela on the 19th of February, Zaman Khan was not medically examined at the hospital till 3‑10 p.m. on the following day. Malik Abdul Ghafur who recorded the dying declaration, received the doctor's Exh. P. T. f at 3‑45 p.m. and reached the hospital at about 4 p.m.
21. Another very significant fact is that, as shown by the ruqqa Exh. P. Q. Q. sent by the doctor to the Station House Officer, Chakwal, Zaman Khan died very shortly after his statement Exh. P. V. was recorded. The relevant portion of the ruqqa, which is dated the 20th of February, runs:
"Zaman Khan son of Muhammad, a medico‑legal case, ha expired today at 5-40 p.m."
At the time the dying declaration was recorded, therefore, Zama Khan was almost at his last gasp. Moreover, the post-mortem examination shows that both the peritoneum and the liver had been injured. Zaman Khan must accordingly have been in considerable pain while his statement was being recorded.
22. The record further shows that there was full., oppor tunity for Zaman Khan's relatives to tutor him regarding the identity of the assailants. Malik Abdul Ghafur has stated that when he reached the hospital seven or eight persons were present near the beds of Khuda Bakhsh. Saif Ali and Zaman Khan, and it is reasonable to suppose that these persons included or consisted entirely of their relations.
23. Finally, it cannot be overlooked that in the circums tances described by prosecution it is highly unlikely that Zaman Khan and the eye‑witnesses could have accurately observed the details of the injuries inflicted by the individual assailants. Including Resham Khan absconder the party of the appellants consisted of no fewer than seventeen persons, and brought Faiz Ali, Muhammad Azam and Saif Ali contend that the various shots were fired at separate intervals, they are contradicted by Feroze Khan, who states :‑
"The first person to launch the attack was Resham absconder, who threw his hand‑grenade at us, but it hit the parapet wall of the kotha of Ahmad Khan on the court‑yard of Farman Khan. After that all the accused started firing at us."
Muzaffar's statement on the point is as follows :‑
"Gulzar accused then fired a shot with his rifle which hit Khuda Bakhsh P. W., who at that time was standing on the roof of the kotha of his brother Nadir. After that the rest of the accused started faring at the P. Ws. and the deceased." In my opinion Feroze Khan's version is the most probable.
24. Mr. Islam‑ul‑Haq for the State contended that the fact that in his dying declaration Zaman Khan named only ten persons out of the seventeen alleged by the prosecution to have taken part in the occurrence is proof of his truthfulness, but this argument is by no means conclusive. As I have already pointed out, Zaman Khan was very near to death and in great pain when his statement was recorded, and his omission of the names of seven of the alleged assailants may be due to failing memory or inability to concen trate. In this connection it is to be noted that after giving the names of the nine appellants and of Resham Khan, Zaman Khan added the word "etc.", which shows that he was not confining the number of the assailants to ten only.
25. Taking all the above circumstances into consideration, I am constrained to hold that the dying declaration of Zaman Khan itself requires corroboration and consequently cannot safely be used to corroborate the statements of the eye‑witnesses.
26. As none of the weapons recovered from the various accused has been linked with the offence, the learned Sessions Judge was right in disregarding the recoveries. It is true the sten‑gun Exh. P. 26 alleged to have been produced by Kafayat Ali appellant is an unusual type of weapon, its recovery thus appearing at first sight to provide some corroboration of the witnesses story, but the possibility that the witnesses were previously aware that Kafayat Ali possessed such a gun cannot be entirely ignored.
27. As no other corroboration of the statements of the eye witnesses is forthcoming, I have no option but to hold, agreeing with the opinion of the assessors at the trial, that the identity of the assailants has not been satisfactorily established, I would accordingly accept the appeal, set aside the convictions and sentences of the appellants, and acquit them.
MUHAMMAD YAQUB ALI, J.‑---I have carefully read the judgment proposed to be delivered *by my learned brother Mr. Ortcheson in this case and for the reason to be mentioned here after regret my inability to concur with it.
2. The occurrence took place on the 19th of February 1960, at digarwela i.e., between 4 and 5 p.m., in village Chhoi Jandran, at a distance of eight miles from Police Station Kallar Kahar, District Jhelum, the entire track being hilly. It took Raja Amir Muhammad Khan, Station House Officer (P. W. 28), who undertook investigation in the case, four hours to cover this distance. Question is whether the report lodged between 10‑30 and 11 p.m. was belated. The manner in which the accused mounted the attack on their unfortunate victims shows that it lasted for .a considerable time As brought out in evidence the victims were first chased from the house of Muhammad Afzal P. W. to the roof of Ahmad Khan and a hand‑grenade thrown at them which fell in the courtyard of the house and exploded there. After that a number of shots from rifles and other firearms were fired at them, some of which hit Rhuda Bakhsh P. W., Ghulam Muhammad deceased, Zaman Khan deceased, Muhammad Azam P. W. and Saif Ali P. W. At this stage, Feroze Khan (P: W. 19) got down from the roof of the house of Ahmad Khan and concealed himself in the near‑by house of Muzafar Khan. Muhammad Azam (P. W. 21) sought shelter in the kotha of Feroze and was followed by Jamedar Faiz Ali who carried with him Ghulam Muhammad deceased in an injured condition and both of them placed him on a cot in a kotha and chained it from inside. With unabated fury the assailants collected on the roof of the kotha, where the aforementioned P. Ws. and the deceased had taken shelter, and bored a hole in it. Through it they dropped two hand grenades which outright killed Ghulam Muhammad and injured Jamedar Faiz Ali. The terror struck in the hearts of the victims of this assault was so great that even though the accused had departed. Muhammad Azam and Faiz Ali P.…
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