ASLAM RIAZ HUSSAIN, J.-Muhammad Rafiq petitioner was tried along --with Liaqat Ali co-accused, for the murder of Farzand Ali. The learned trial Judge (Additional Sessions Judge, Muzaffargarh) convicted both of them under section 302, P. P. C. Muhammad Rafiq petitioner was sentenced to death while Liaqat Ali co-accused was sentenced to imprisonment for life.
2. At the trial the prosecution relied on the ocular testimony of Mumtaz Ali (P. W. 14) and Taj Muhammad (P. W. 15) ; two dying declara--tions made by F4rzand Ali (deceased) (Exhs. P. J. And P.
K. Respectively) ; the first was recorded by Muhammad Ali, S. H. O. (P. W. 17) and the second was recorded about 1J hours later by Muhammad Khan (P. W. 9) a Magis--trate ; recovery of .32 bore pistol (P. 10) from Muhammad Rafiq petitioner which matched with the four empties recovered from the spot ; motive and the medical evidence.
3. The learned trial Judge disbelieved the first dying declaration (Exh. P., J.) recorded by the S. H. O.
But, relying on the second dying declaration (Exh. P. K.) ; testimony of the eye-witnesses and the motive, convicted both the accused. The High Court while deciding the appeal, did not rely either on the eye-witnesses or on the recovery evidence. It also disbelieved the first dying declaration recorded by the S. H. O. And observed that the trial Court had rightly discarded it. It, however, relied on earlier portion of the second dying declaration (Exh. P. K.) and maintained the conviction of Muhammad Rafiq thereon but reduced his sentence from death to imprisonment for life and awarded a sum of Rs. 5,000 as compensation under section 544-A, Cr. P. C. To be paid to the heirs of the deceased. But disbelieving the remaining portion of the same dying declaration (Exh. P K) which related to Liaqat Ali co-accused (who is respondent in the connected Criminal Petition No. 374 of 1979 filed by the complainant) acquitted him (i.e. Liaqat Ali).
4. Leave is granted in this case to consider whether, in the circum--stances of this case the High Court was justified in disbelieving a portion of the dying declaration (Exh. P. K.) and acquitting the accused implicated in that portion, while believing the remaining portion of the same dying declara--tion for basing the conviction of the co-accused (petitioner herein) without any independent evidence corroborating thatportion of the dying declaration.