1. MUHAMMAD AFZAL. ZULLAH, J.--Leave to appeal has been sought from judgment, dated 2nd April, 1979 of the Lahore High Court ; whereby while dismissing a criminal appeal arising out of a murder .Case, a learned Division Bench confirmed amongst others the sentence of death awarded to the petitioner for the murder of his enemy, namely, Zulfiqar and for murderous assault on Muhammad Zafarullah P. W., a cousin of Zulfiqar.
2. The prosecution case as contained in the deposition of Muhammad Zafarullah P. W. 1, who is not only closely related to the deceased but is also himself injured and further is the first informant, is as follows :- "About 1J years back it was 8-50 a. m. I along with my cousin Zulfiqar Ali deceased was going in the northern Gali ofGovernment Girls High School, Kotadu. Ghulam Abbas accused came there from the Gali of Agricultural Development Corporation. He raised a lalkara to Zulfiqar deceased and fired shots on him with gun. He fired two shots. Malik Haq Nawaz and Malik Sharif who were present in the nearby baithak also witnessed the occurrence. I took shelter behind the tonga. Ghulam Abbas accused then tried to attack Zulfiqar with dagger in order to inflict injury on his abdomen. 1 caught hold the accused from behind. The blow of dagger of the accused bit Zulfiqar on his thigh. The accused then attacked me in order to release himself. The dagger blow given by the accused hit m.- on my right shoulder. The accused then,ran away with the gun and the dagger. 'rhen I. Malik Sharif and Haq Nawaz P. Ws. Removed Zulfiqar in injured condition to Civil Hospital, Kotadu. He was taken to operation theatre where he died at 9-20 a. m. 1 was also medically examined.
3. The motive for the occurrence was that the uncle of Ghulam Abbas accused was murdered by Zulfiqar deceased about 91 years prior to the occurrence. Sajjey Shah was the name of the uncle of the accused. Zulfiqar deceased was acquitted in that case: The murder of the deceased was committed by the accused in order to take revenge of the murder of his uncle.
4. The S. 1. Came to civil hospital Kotadu when Zulfiqar was taken to operation theatre. He recorded my statement Exh. P. A. It was read over to me and then was signed by me in token of its correct-- ness. Again said the blow had hit me on my left shoulder. I have mistakenly stared above that I received injury on my right shoulder."
5. The prosecution case in addition to the deposition of Muhammad Zafarullah was supported by two other eye-witnesses, namely, Haq Nawaz and Muhammad Sharif. The deceased, namely, Zulfiqar had within few minutes of the occurrence made a dying declaration (Exh. P. D), which was recorded by a Sub-Inspector of Police after the Doctor concerned had certified that the then injured person was fit to make a statement. Evidence was led about this dying declaration also.
6. There were two incriminating recoveries : one a dagger P. 8, and another gun P. 7 licensed in the name of another person but recovered from the petitioner. This gun matched with the crime empty recovered from the spot, These two recoveries, however, have not been made much use of-the dagger was not found to have been blood-stained and the crime empty although recovered prior the recovery of the gun was not sent to the Ballistic Expert before the said recovery. There was no tangible explanation in that behalf. Although the manner of arrest of the petitioner on the next day of the occurrence from a bus stand in a state of flight and then the recovery from him of a dagger and the gun, which in all probability were used in causing the two types of injuries with fire-arm and sharp-edged weapon on the deceased were relevant factors, we however, keeping in view the approach of the learned Courts below, would keep them out of consideration.
7. The plea of the petitioner was of denial with regard to occurrence and the recoveries. The prosecution case with regard to motive, namely, that Zulfiqar had murdered real uncle of Ghulam Abbas and was acquit--ted after a trial, was not denied by the petitioner. He also led evidence in defence. D.W. 1 Muhammad Naqib Jafri proved a news item Exh. D.D. In a Weekly newspaper of the locality, named, "Basharat", Although the publisher of the Weekly had in the meanwhile died, Muhammad Naqib Jafri, Manager of the Weekly was examined as D. W. 1 to -state that the news item was published by Allah Bakhsh ICashfi, who was himself the Editor and Proprietor of the Weekly. The witness did not give any source of the news published by Allah Bakhsh Kashfi nor the news item itself disclosed any source. The purpose of examining D. W. 1 was to prove the contents of Exh. D: D. So as to show that as published therein, the crime in this case was committed by an unknown person, who had covered his face and was described as a Naqab-posh. D. W. 2, namely, Allah Wasaya claimed to be an eye-witness. According to him, Zulfiqar was done to death by a person who had muffled his face. There were two to four persons who were present at the time of occurrence and according to this D. W. They had also fired two shots. In cross-- -examination, this witness stated that the person firing the shots had also attacked the deceased with dagger. He admitted that Muhammad Zafarullah P. W. Also received an injury on his shoulder, and further that Zulfiqar the other injured who subsequently died, had told the witness on his inquiry, that he was injured by Ghulam Abbas petitioner. The third D. W. Was Mahmood Khan, who deposed that the gun Exh. P. 7 which belonged to him and was licensed in his name, was taken by the Police from his possession. Learned Courts below finding overwhelming reliable evidence against the petitioner held him guilty and punished him variously for the two offences under sections 302 and 307, P. P. C.
8. The punishment included the award of sentence of death.
9. Learned counsel for the petitioner, notwithstanding the prompt) F. I. R. And the dying declaration, which were both proved by dis--interested witnesses including a Doctor, and further notwithstanding the fact that it is a day time occurrence and is a single accused case in which the culprit named in the F.
1. R. And dying declaration had a strong motive and further a victim of attack by the culprit, namely. Muhammad Zafarullah has survived to depose against the petitioner, vehemently con--tended : that the denial of the eye-witnesses regarding muffed face of the!
10. Culprit is false because they failed to notice what were the clothes worn by him ; that the assertion regarding the covered face of the culprit was established by the Weekly publication Exh. D. D. And the deposition of Muhammad Naqib Jafri D. W. 1 ; that Exh. P. D. a memo prepared by the Sub- Inspector before the recording of the dying declaration for purpose of obtaining the certificate of the Doctor, did not contain the name of the accused ; that Muhammad Sharif is a cousin of Haq Nawaz P. W. Who was a class fellow of the deceased, therefore, these two witnesses besides being chance witnesses were interested ; that Haq Nawaz P. W. By showing his ignorance whether his brother Muhammad Nawaz had appeared as a defence witness for Zulfiqar deceased in the previous murder case should be presumed to have admitted the connection of his family with the deceased : that the High Court could not discuss the defence evidence in such a manner so as to show a conscious application of mind to the case set up therein ; and further that according to the learned counsel the evidence did not inspire confidence.
11. The eye-witnesses clearly stated that the culprit was not wearing any, dead dress. They, however, refused to speculate as to what was his wearing apparel. They were examined nearly a year and a half after the1 occurrence and if they failed to recollect an unimportant element in the case, it would not make any difference. The main reliance of the learuedi counsel for putting forward the plea of the 'covered face' of the culprit is the newspaper item Exh. D. D. Although its original source not having been disclosed neither in the statement of the accused nor in the defence evidence and the same having been published two days after the occurrence it is, otherwise, a worthless piece of paper, we after bearing the learned counsel in this behalf have discovered intrinsic false-- hood and unreliability of Exh. D. D. Whosoever the source, he was either creating a mischief or to say the least was guilty of criminal negli--gence when not mentioning the name of the accused ; as the 'news' in Exh. D. D. Appeared two days after the lodging of the F. I. R. Wherein the name had been clearly mentioned. If the person responsible for the news had taken the slightest trouble of seeking information from the Police Station even after two days of the occurrence, he would have discover that the petitioner had been named not only in the F.
1. R. But also indying declaration of the deceased, which was attested by an independent person-the Medical Officer. It is also strange that the publisher, namely, Allah Bakhsh Kashfi who was also the Proprietor and Editor of the Weekly, thought it fit not to give the source of the news item in Exh. D.D. It is missing also in the deposition of Muhammad Naqib Jafri D. W.
1. Had it been disclosed, the truth or otherwise of the news would have been discovered. Further the deceased admittedly suffered a thigh injury in the occurrence resulting in the death. The so-called ---news item in Exh. D. D. Does not make mention of it. On the contrary, there is another falsehood, while Zulfiqar, the injured person had been taken by the Doctor on a stretcher (the hospital is very near to the place of occur--rence and the Doctor bad in fact heard the fire-shots), to the hospital for treatment and he got the dying declaration recorded by giving certificate and after the recording of the dying declaration which would show that the main victim of the attack by the culprit was able to survive for some--time and did not die at the spot, the news item in Exh. D. D. Would have us believe that the victim had expired at the spot. A wild but mis--chievous attempt was made in the news item ; firstly, to dilute the effect of the dying declaration ; and secondly, by introducing the so-called Naqab to exclude the possibility of the culprit having been identified at the spot. We accordingly exclude this piece of evidence and condemn the attempt made in this behalf by the Weekly.
12. The deposition of Allah Wasaya D. W. Has inter se contradictions. At one place, he stated that one person committed the murder of Zulfiqar and that he had muffled his face while at another he deposed that two to four persons were present at the time of occurrence, and that the "said persons fired two shots". About these persons, Allah Wasaya did not state that they had also muffled their faces nor does he say as to why they were not named as culprits either by him or others. Under cross--- examination again he stated that the person who fired the shots had also attacked the deceased with a dagger. Here he did not state whether this person was from amongst two to four persons who had fired at the deceased and had not muffled their faces. In the end, the D. W. Contrary to what he claimed to have seen also stated that Zulfiqar, the injured told him on his inquiry that he was attacked by Abbas accused. It is strange that the witness despite having himself seen the occurrence made inquiries from Ghulam Abbas with regard to his assailant. If on account of muffled face, the assailant could not be identified, there was no reason why the witness should have asked the identification from the injured. The statement of this witness also needed to be kept out of consideration. In fact the defence evidence led with regard to the iidentity of the culprit was not worth consideration at all. We devote attention to it because the main point urged by the learned counsel was the same It cannot be said that the High Court was not conscious of this evidence. However, it met the treatment it deserved.
13. The remaining points raised by the learned counsel are with regard to the appreciation of the depositions of the eye-witnesses and the weight to be attached to them. After hearing him in this behalf, we have hot been able to find any infirmity in the appreciation by the learned Courts below.
14. It. Was a daylight occurrence. As already noted, the culprit was named within few minutes which took place at a public place. It could not at all be considered as an unwitnessed occurrence. . One of the eye-witnesses is himself injured. He had no reason to sub--stitute an innocent person for the real killer if he were a different person. Muhammad Zafarullah P. W. Who was him-self injured saw the assailant from a very close distance. In fact he tried to catch hold of the assailant when in that effort he himself became the victim of his assault Haq Nawaz and Muhammad Sharif P. Ws. Have given good explana--tions for their presence at the spot. The criticism .Against Haq Nawaz that he was the class fellow of the deceased would not dilute the effect o his statement. Haq Nawaz and Muhammad Sharif P. Ws. Could not in the circumstances of the case either .Be treated as interested o chance witnesses. Regarding dying declaration also, we see no reason why the Doctor would have made a false statement in Court or for that matter would have appended false certificates regarding the same. The entire investigation apart from the arrest and recovery from the peti--tioner took a very short time after the occurrence when the matter was absolutely fresh.
15. Substitution or for that matter false implication in this case was out of question- The petitioner was rightly convicted for the offences charged.
16. This petition has no force and is accordingly dismissed.