1. ABDUL HAYEE KURESHI, C. J.-The appellant, Banhoon, was tried by the 1st Additional Sessions Judge, Sukkur on a charge under section 302, P. P. C. By a judgment, dated 29-10-1979, he has been found guilty of the said offence and has been convicted and sentenced to death. He has filed the present appeal through Mr. Azizullah K. Shaikh who has appeared before us, and the State was represented before us by Mr. S. Sarfaraz Ahmad, Assistant Advocate-General. The Additional Sessions Judge has also made a reference to this Court for confirmation of the sentence of death imposed on the appellant. We propose to dispose of the confirmation reference and the appeal by this single judgment.
2. The brief facts of the prosecution case are that deceased Jurio used to work as an outside bearer in a tea shop in Jarwar Town in Tehsil Mirpur Mathelo, Sukkur. On 18-1-1976 at about 3-00 p.m. The deceased was in a lane in connection with his work, when the appellant came up armed with a single barrel gun, and asked him to bring Allahditto and Allahyar, presumably .Known, or, related to the deceased, so that the appellant could take revenge. It seems the deceased refused to comply with the demand of the appellant, upon which the appellant fired at the deceased, which hit him on the right arm and the right side of chest under the arm. The appellant then fled away, while the deceased fell down on the ground. The incident was witnessed by three eye-witnesses Arbab, Jiwan and Mundhoo who lifted the deceased and brought him to Mirpur Mathelo, Police Station, where the deceased himself lodged the Report. This Report bas been treated as dying declaration on account of the death of the deceased.
3. The deceased was first sent to Mirpur Mathelo Hospital, but it seems that the day, being a Sunday, no Medical Officer was available, so that the deceased was sent to Ghotki Hospital, where he expired on the next morning. Post-mortem was held by Dr. Mahboob Ali Soomro, who found the following four injuries on the person of the deceased :--
(1) A lacerated wound 2' in diameter x muscle deep on outer side of right upper arm in its lower half. The charring was present.
(2) A lacerated wound about 2 -- 'in diameter x muscle deep on the inner side of right upper arm.
4. There was no charring. .
(3) Two lacerated wounds about-- ' in diameter chest deep on the outer side of right chest at its lower part. The charring was present.
(4) A circular lacerated wound about --in dameter x chest deep about -- 'below injury No. 3. The charring was present.
5. The first Information Report was recorded by A. S. I. Ghulam Rasool who, after recording the same, read it over to the deceased, who admitted its correctness and signed the same. The mashirnzma of injuries on the person of deceased was also prepared by the same Police Officer. This Police Officer came to the wardat in the company of P. W. Arbab, and he prepared a Mashirnama which was attested by P. W. Rasool Bux and one. Ali Murad. An empty cartridge and blood was secured by the Police Officer at the wardat. The Police Officer also searched for the appellant, who was not traceable. He also examined the three eye-witnesses, along with one Dewromal, who is stated to be a goldsmith carrying on business at, or about the place of incident, The said Dewromal had not been examined. On 2-2-1976, investigation was taken over by S. H. O. Noor Muhammad Jalbani, who had received information that the appellant had escaped to Rattodero within the district of Larkana. From where the appellant was arrested. On interrogation by A. S. I. Ghulam Rasool, the appellant volunteered to produce the gun used in the commission of the crime, and he led the said Police Officer, along with Masbir Budho and one Muhammad Hayat to a graveyard known as "Pir Khair Shah", near Jarwar Town, and, from the said grave--yard, he produced a single-barrel gun, which lay concealed under the Lai bushes. Subsequently, the gun as well as the empty cartridge were sent to the Forensic Science Laboratory, and, by a certificate, dated 30-4-1976, it has been opined that the crime empty found at the vardat had been fired from the single barrel gun produced by the appellant. During the investigation, the Police Officer also had the statements of witnesses Arbab, Jiwan and Mundhoo recorded under section 164, Cr. P. C.
6. At the trial, the prosecution examined Arbab, Jiwan and Mundhoo as eye-witnesses, and these witnesses have also stated that the deceased had informed them about the talk that had preceded the actual firing, and also named the appellant as the person who had fired at him. A. S. I.
7. Ghulam Rasool has proved the First Information Report, which has been treated as a dying declaration and has also deposed to recovery of the crime empty and crime weapon. He has also deposed to arrest of the, appellant from a village near Rattodero. Dr. Mahboob Ali Soomro has tendered medical evidence. Mashirs Rasool Bux and Budho have been examined to prove the fact of seizure and recovery of the crime empty as well as the crime weapon. Mashir Rasool Bux was the employer of the deceased, and he had also gone to the hospital, and saw the injuries on the person of the deceased. Another witness examined was Chatto, who has also deposed in regard to an oral dying declaration made by the deceased to him, when he had gone and seen him in the hospital. Lal Bux, the Tapedar, who prepared the sketch of the scene, has also been examined. The other evidence in the case is of Police Officer, who are concerned with investigation.
8. The appellant produced no witness in his defence but, in his statement under section 342, Cr. P. C., he denied the prosecution case. He stated that he did not produce a gun, and he was taken in custody, while he was sitting in his house. He denied all knowledge about the crime empty. He further stated about that he had been involved by Sardar Khan Muhammad Bozdar, as he had left his service. He alleged enmity with the witnesses.
9. The evidence against the appellant consisted of ocular testimony furnished by P. W's Arbab, Jiwan and Mundhoo ;the dying declaration, written or Oral ; the recovery of the crime empty and crime weapon, which matched the abscondence of the appellant from the village, and his arrest at a village near Rattodero. We may state that Rattodero would probably be at 4 distance of about hundred miles from the place of incident.
10. We propose to deal with ocular testimony of Arbab, Jiwan and Mundhoo. Both Arbab and Jiwan claim to have gone from their village, which is near Jarwar Town, to the said town, where they were standing near the shop of one goldsmith. They have stated that they saw the deceased, who was busy in supplying tea to some persons, or, shopkeepers, and, when the deceased started going to his shop, the appellant emerged from a lane being armed with the weapon. They deposed to having heard the conversation between the appellant and the deceased, which led to the deceased being shot at by the appellant, where after they went upto the deceased, and the latter disclosed to them that the appellant had asked him to bring Allahditto and Allahyar, so that he could take revenge, and, on the deceased refusing to comply with the demand of the appellant, he was shot at. Mundhoo has stated that he had gone to Jarwar Town for purchasing vegetables, when he saw the incident, and thereafter, on his asking, the deceased disclosed the circum-- stances that led to the firing. Each one of these witnesses claims to have taken the deceased to the Police Station, and name of each one has been mentioned in the First Information Report (dying declaration), which was recorded within three hours at Mirpur Mathelo Police Station located at a distance of eight miles. Although the deceased was taken in a bus, yet the Report could not be termed belated, because it must have taken some time before the bus could be engaged and some more time must have been con--sumed in traversing the distance. Each one of these three witnesses is a close relative of the deceased. While Arbab in his maternal uncle, Mundhoo is the uncle of Arbab, whereas Jiwan again is a cousin of Arbab. They all live . In the same village, and even the appellant resides there. There appears to be a background of enmity between P. W. Jiwan and the appellant. It is admitted by the said witness that the appellant had filed a complaint against him, his two brothers and another relative a year prior to this incident, and such case was found to be false by the concerned Court, and all of them were acquitted. However, at the time of this incident, the case was pending. No further particulars about this case have, however, been disclosed. Each one of these witnesses has given cogent and convincing evidence in regard to the appellant having shot the deceased. Mr. Azizullah K. Shaikh has, however, contended that it was improbable that these witnesses should have been available at the scene precisely at the time of incident. We find from the evidence that each one of them has given a satisfactory reason for being available on the scene. While Arbab and Jiwan have stated that they had come to the goldsmith,' Mundhoo has stated that he had come to purchase, vegetables. In any case, they resided at a call's distance from the town of Jarwar, and may well have come there in the afternoon in the cold month of January. In any case, they are named in the First Information Report, and they claim, which claim is not contradicted, to have carried the deceased to the Police Station, and subsequently to the hospital. No doubt, Dewromal, whose statement had been recorded by the Police, has not been examined and, as a matter of fact, no person. Who might have been available in the Bazzar, has been examined, but the reason for such phenomenon is obvious. We know that, in the Mofussil, People, who have seen the incident, are also reluctant to give evidence, unless the party, likely to be benefited by such evidence, is related, or, connected with them. It is unfortunate, but, knowing the local conditions, we can safely say that such evidence is withheld more on account of a reason to protect oneself against the wrath, or, revenge of the adverse party, rather than for any other reason.
11. The next contention of Mr. Azizullah K. Shaikh is by reference to the sketch of the scene. He contends that witnesses Arbab and Jiwan were standing at point 'B,' which is the shop of Dewromal, whereas the incident occurred at point 'A'. He has pointed out from the cross-examination of Tapedar Lal Bux that point 'B' is a line, where there are shops of goldsmiths and others. He then states that, since point 'B' was located in a lane, the witnesses could not have seen point 'A', but we find on a reference to the sketch of wardat that, though point `B' is in a separate street, yet it was at the cross road, so that point 'A' was visible. Additionally, Mr. Azizullah K. Shaikh has pointed out that the fact of the crime empty having been thrown at the wardat has not been mentioned by any or these witnesses, and, if they had been available at the scene, they would have deposed in that regard.
12. This, at best, is an omission, and it is possible that the witnesses have not marked the empty lying at the wardat. The witnesses, do, however state that the appellant reloaded the gun, and, in that event, the crime empty might have been discarded. The omission to mention the crime empty having been thrown at the scene is, in our view, not of much consequence, if we otherwise believe the version given by these witnesses to be true.
13. In regard to these witnesses, a further fact deserves notice. Arbab had, in his examination-in-chief stated that he had heard the conversation between the appellant and the deceased before the firing, but, in cross-examination, he had stated that he did not himself hear the conversation between the deceased and the appellant, as he was sitting at a distance of about fifteen paces. In the same context, Jiwan has only stated that he saw the appellant calling the deceased, and then shooting him, but he has not stated that he heard the preceding conversation. However, both these witnesses have categorically stated that, after the shooting, when they approached the deceased, the latter disclosed the reason which had led the appellant to shoot at him. In that respect, Mundhoo also did not hear the conversation between the appellant and the deceased,, but he- did see the actual shooting. It seems to us that each one of these three witnesses, in spite of having an opportunity to depose in regard to the conversation preceding the shooting, have refrained from so deposing. That shows the honesty of these witnesses. No doubt, Arbab has said so in his examination-in-chief, but, when he was cross-examined, he came out with the truth. The evidence of the eye-witnesses has also been attacked on the basis of medical evidence, which shows charring. The eye--witnesses had been cross-examined on such point. Arbab had stated. That the appellant had talked with the deceased from a distance of .Eight paces, whereas Jiwan had stated that it was from a distance of four, or, five paces. No doubt, these two witnesses have not given any evidence, which might be consistent with the medical evidence, but still we are of the view that it may be a honest mistake. On the other hand, if we are to take the distance to be four,. Or, five paces, which might be toughly ten feet, counting the length of the gun, the mouth may well be very near to the deceased. Having regard to the evidence of these three witnesses, we are in no doubt that their evidence is true and can be relied upon.
14. The next piece of evidence against the appellant is of dying declaration. The main plank is the First Information Report that was recorded by A. S. I. Ghulam Rasool. This dying declaration is a fairly detailed document, and reads as follows :- "Complaint.-That I am servant on the Hotel of Chatto Dayo and work as outsider. Today at 3-00 p.m. While I was going to take orders for tea in the town, when I reached in the street before- the shop of Dewlo goldsmith, then stood Banho, son of Haji Qadirdad Bozdar, r/o Shanro, who had a single barrel gun in his hand and near him Arbab, son of Mahmood and Jiwan, son of Alain Bozdar were standing, with whom I was speaking, when Banho called me and he told me that your relations Allahditto and others have fought with me, and you go and bring them on some pretext that I may take revenge from them, but I told him that I would not do that on my saying so, he immedi--ately abused me and aimed his gun at me by saying that my days have been one today and fired his gun at me which struck me on the upper portion of my right arm and in the side. I raised cries and on my cries the above witnesses and 'Mundhoo, son of Dost Muhammad and other people of the town came there. Then the accused ran away towards west along with his gun.
15. I fell down. Then the above witnesses lifted me and brought me at Police Station. I am complai-- nant. Action maybe taken as the above accused has fired his gun at me with interest to murder me."
16. Apart from the written dying declaration, each one of the three eye-witnesses, namely, Arbab, Jiwan and Mundhoo has stated that the deceased told him the circumstances that had led to the appellant shooting at him. On that point, there is also the evidence of Chatto, who claims that the deceased was working as his bearer. He has stated that, on coming to know that the deceased had received injuries, he had gone to the hospital, where he found the deceased in his senses, and, on an enquiry, the deceased told that the appellant had fired at him with gun. This witness has not said so in his Police statement, and therefore, we will keep his evidence out of considera--tion.
17. The learned Advocate for the appellant has contended that the dying declaration is not reliable, as it was the product of tutoring, or, alternatively the deceased having received the injuries could not have made a statement. In an earlier part of this judgment, we have recorded the injuries that were received by the deceased. None of these injuries is on the head, or, heart. Patently the deceased died on the next morning at 8-00 a.m. Which means that, in spite of these injuries, he continued to live. Reliance was placed on the evidence of Dr. Mahboob Ali Soomro who had stated that the injured was in a state of shock, when he was brought to Ghotki, and he died without regaining senses, but the same Medical Officer also stated that the injured could have remained .Conscious for about six, or, eight hours, and he could have made a statement. Considering both these statements together, it. Is` clear that unconsciousness could not creep in instantaneously, so that the deceased may well have been conscious for a few hours, and then lost cons--ciousness on account of excessive bleeding. On that point the evidence of A. S. L, Ghulam Rasool is very clear, and we have no doubt that the deceased was in a condition fit enough for making statement. In that context, we may also refer to the evidence of Arbab that the deceased was conscious and, in fact, the witnesses never suspected that the deceased would die. This witness has stated that, even in the hospital, the deceased was in senses. We are of the view that, for a few hours after receiving the injuries, the deceased must have been in senses, and the dying declaration recorded by A. S: I., Ghulam Rasool genuine. Coming to the next criticism in regard to the dying declaration that it was a product of tutoring, we do not find an circumstances on the record as might show tutoring and, on the other hand, it is in the evidence of witnesses that they wanted to lodge the Report, but the deceased stated that he would lodge the Report himself. In fact, Arbab ha: stated that the father of the deceased wanted to lodge the Report, but the deceased himself insisted that he would lodge the Report himself. What is more that the incident had occurred in broad daylight, and we are of the view that the three eye-witnesses had seen the incident. It is, therefore, absolutely improbable that the deceased or, any of the witnesses would be interested in substituting the culprit.
18. Mr. Azizullah K. Shaikh has invited our attention to case-law on the subject. He initially referred to the case of Hayatullah v. The State 1969PCr.LJ724,and he has pointed out the following passage appearing in the judgment of D. B. :- "The A. S. I. Has also stated that the condition of the deceased was not serious at the time when his statement was recorded by him. Sanctity is normally attached to a dying declaration because it is assumed that when a person is face to face with death he would like to make peace with God and would not tell lies. In this case his- condition, as deposed by the A. S. I. Was not serious and therefore the F.1. R. Cannot be treated as a dying declaration."
19. We are unable to agree with the proposition that, for the reason of the deceased not being in serious condition at the time of lodging the First Information Report, the said Report cannot be treated as a dying declaration. Under section 32 of the Evidence Act any statement made by a person as to cause of the death, or as to any of the circumstances of the transaction, which resulted in his death, is relevant in cases in which the cause of that person's death comes in question. It is further stated in the section that such state--ments are relevant whether the person who made them was, or, was not at the time. When they were made. Under expectation of death. It is thus clear that, in regard to admissibility of dying declaration, the person being in expectation of death is completely irrelevant. As it is, the state of law on the subject is that a dying declaration has to be considered like any other state--ment made by a witness. Section 32 is contained in the chapter that deals with exceptions to the hearsay rule and makes some statements relevant, in spite of the maker thereof not entering into the witness-box. In these circumstances, the doctrine that one of the reasons for giving credit to a dying declaration is that it is the statement of a person,, who thinks that he will soon be before his Master, and is to be given credit, because people, in such condition do not lie, but surely the mere fact of a person not being in immediate expectation of death would not make such a statement inadmissible solely on the ground that he was not expecting to die immediately. In any case, the deceased in this case had died on the following morning, and therefore, this argument is hardly of any avail to the appellant. The learned Advocate has also relied on the case of Tawaib Khan v. The State PLD1970SC13.. Sajjad Ahmed, J. In that case was dealing with a crime committed on account of blood feud. The learned Judge has, in that context, laid down the safe--guards, which have to be kept in view, while dealing with dying declarations, in the following words; "But, I consider that in the matter of the administration of criminal justice, taking in view the present state of our society, the assessm ent of evidence, whether it is the statement of a witness or the statement of a person who is dead is essentially an exercise of human judg--ment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be con--sidered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circum--stances and possibilities that can be safely deduced in the case. In this country, the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons along with the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted as if by a magic transformation, with a clean conscience and purity of mind to shed all the age-old habits and deep.. Rooted rancours and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, question arises whether these pangs are strong enough to fortify him to resist the prompting and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty? It is for this reason that a close scrutiny of the dying declarations like the statements of interested witnesses, becomes absolutely necessary."
20. In the case of Zarif Khan v. The State PLD1977SC612, also some safeguards have been started, which are, more or less,-in similar terms as are stated in the case of Tawaib Khan. We are in respectful agreement with the pronouncements of their Lordships of the Supreme Court. We would, however, say, that, while testing the reliability of a dying declaration, we have to consider the state- -ment as if it was the statement of a living man. We have to see whether the dying man had an opportunity of seeing the assailants, remembering the events and being in a state of mind, which is not blurred, so as not to remember events. If we are satisfied on that score, then the next test is whether the statement is improbable, or may be false on account of enmity, or, rancour against the accused persons, and additionally whether it is the result of prompting, or, tutoring by some other persons. On such examina--tion, if the Court comes to the conclusion that the statement has been made by the dying person, that the dying person had, an opportunity of seeing an 6 identifying the culprit, then we have only got to see if the statement could be discredited on other grounds, namely, that it comes from an interested source, or, is the product of tutoring. Applying this test to the instant case, we are of the view that the incident having occurred in broad daylight, the appellant being known to the deceased, and, the deceased being in senses, this statement was probable. We are further of the view that the statement is also true having regard to other circumstances of the case. We rely on this dying declaration.
21. The next piece of evidence against the appellant in his abscondence from his village and his taking abode in Rattodero at a distance of about hundred miles. Unfortunately, this circumstance has not been put to the appellant in his statement under section 324, Cr. P. C. We will, therefore, not take itinto consideration against the appellant.
22. The last piece of evidence on which prosecution relied was the recovery of the empty cartridge at the scene and the gun at the instance of the appel--lant. The gun and the cartridge were sent to the Forensic Science Laboratory, and positive Report has been received to the effect that the cartridge in question had been fired from the gun. The gun was recovered on 5-2-1976 ,but was sent to the Forensic Science Laboratory after nearly two and a half months. No explanation has been given in regard to this delay. What is, more that the Report from the Forensic Science Laboratory given no reason for the opinion. Even the micro composite photographs were not produced, nor was the Expert examined in Court. We omit this piece of evidence from consideration.
23. The appellant had examined no witness in his defence and had alleged enmity against the witnesses. No doubt, the appellant had filed a case against P. W. Jiwan and his brothers. We have no means of knowing what this case was about, and even a copy of the judgment has not been placed on record. Even if we are to hold the prosecution witnesses to be interested, still their evidence appears to us to be reliable. In any case, ocular testimony is strongly corroborated by the dying declaration.
24. We are of the view that the appellant has been rightly convicted, and his appeal merits to be dismissed and is hereby dismissed. There are no mitigat--ing circumstances in this case, and we confirm the sentence of death imposed on the appellant.