' Ghulam Shabbir, son of Muzaffar Khan, aged 32 years, armed with pistol, has been convicted under section 302, P. P. C. For the murder of Sher Baz aged about 40 years, and vide judgment of the Sessions Judge Khushab dated 1-11-1982, he has been sentenced to life imprisonment plus fine of Rs, 20,000 or in default to undergo two years' rigorous imprisonment with the direction that if the fine was realized from him, Rs, 16,000 out of the same should be paid as compensation to the heirs of the deceased. The appeal of the convict is being taken up along with Criminal Revision No, 769 of 1982, for enhancement of the sentence awarded to the convict from life imprisonment to death and these are being disposed of together by this judgment.
2. The occurrence took place on 8-5-1980 at 1 p. m. Near Bus-stand Khushab at a distance of one furlong from Police Station Khushab, then District Sargodha. Statement (Exh. P. C.) of Sher Baz deceased, while he was still alive, was recorded at the hospital on the same day at 2 p. m. By Muhammad Salim Khan Niazi 5.-I. (P. W. 12) who arrived at the hospital on receiving message from the Medical Officer. On the basis of the aforesaid statement formal F. I. R. (Exh. P. C./1) was registered at the police station on the same day at 2-15 p. m. By Nazar Muhammad M. H. C. (P. W.
4). Initially, a case was registered under section 307, P. P. C. Against the appellant but on the death of the deceased five days thereafter i,e, on 13-5-1980 it was -converted to section 302, P. P. C.
3. The motive for crime as stated in the F. I. R. Is that 15/16 years before the present occurrence, Muhammad Shaft and one Sher Baz, son of Bahawal, related to the appellant, were both murdered and in that murder case the deceased and some of his relatives, namely, Muhammad Feroze (P. W.
7) and Muhammad Khan (P. W. 8), eye-witnesses, were challaned. It is stated that it was in order to avenge the murders of his relatives that the appellant had murdered the deceased. Learned counsel points out that it will be borne out from the record that there is othervhse also a longstanding enmity between the parties. The trial Court has relied upon the motive version.
4. In the F. I. R. The occurrence is reported to have taken place in the following manner. On the fateful day when Sher Baz deceased was near the Bus-stand Khushab, being followed by two eye- witnesses of the occurrence, namely, Muhammad Feroze (P. W. 7) and Muhammad Khan (P. W. 8), the appellant suddenly emerged armed with a pistol from behind the trucks standing there and raised a lalkara at the deceased. Just as the deceased had turned to look at who had raised the lalkara, the appellant is said to have fired a shot through his pistol which hit the deceased at the back of his chest. On the receipt of the said injury, the deceased fell down on the ground in an injured\condition. The eye-witnesses of the occurrence namely, Muhammad Feroze and Muhammad Khan P. Ws. Tried to apprehend the appellant but the appellant managed to escape.
He was thereafter removed to the hospital and with the permission of the Medical Officer the statement of the deceased, while he was still alive, was recorded by the Investigating Officer. On the death of the deceased five days after the occurrence, the statement of the deceased has been treated as a dying declaration.
5. In the light of the dying declaration of the deceased the prosecution has produced two eye- witnesses of the occurrence, namely, Muhammad Feroze (P. W. 7), who is first-cousin of the deceased, and Muhammad Khan (P. W. 8) who is related to the deceased in the sense that the wife of the deceased is niece of this witness. The trial Court has relied upon the ocular testimony in the instant case as well as the dying declaration of the deceased.
6. The appellant was arrested on 4-7-1980 i,e, after about two months of the occurrence by Muhammad Salim Khan Niazi S.-I. (P. W. 12). No explanation is forthcoming from the record as to why the appellant was arrested two months after the occurrence. Be that as it may, no crime empty was picked up from the spot but the prosecution version is that the appellant led to the recovery of pistol (Exh. P. 6) along with a crime empty lying within its chamber (Exh. P. 7) which was taken into possession vide Memo. Exh. P. G. On 14-7-1980. The appellant is stated to have dug out the said pistol from the ground. The Memo. Is attested by Ghulam Jilani (P. W. 9), who according to learned counsel, was also one of the accused in murder case of Muhammad Shafi and Sher Baz son of Bahawal, Muhammad Amir (not produced) and Muhammad Salim Khan Niazi S.-I. (P. W. 12).
But it may be pointed out at this stage that the said pistol was not sent to the Fire-arms Expert for examination. Consequently, the recovery in the instant case is not of any consequence. The prosecution case mainly rests on the dying declaration of the deceased, corroborated by the ocular evidence, which is further supported by the motive version and the medical evidence.
7. The appellant in his statement before the trial Court completely denied having participated in the occurrence. He disowned the recovery and stated that he had been falsely implicated due to long-standing enmity between the parties. It was also stated by him that the deceased had many other enemies and that at the time when he was shot, he told the people who had surrounded him that he could not identify his assailant. The appellant first took the position that he will produce witnesses in his defence but subsequently withdrew from doing so and gave them up. Thus, he pleaded innocence but did not produce any witnesses in his defence. However, learned counsel submits that he placed on record a complaint filed by Muhammad Khan (P. W. 8), an eye-witness of the occurrence and a relative of the deceased, to the effect that the assailant of the deceased could not be identified by anyone but that the relatives of the deceased
8. Dr. Muhammad Riaz All (P. W. 11) medically examined the deceased, while he was still alive, at 2- 15 p. m. On 8-5-1980 when he was brought by the police to him. He found on his person a lacerated wound on the back of the chest. The area around the wound was burnt and he further found for lacerated wounds on the right side of the front chest. Margins of them were everted, These injuries were caused with fire-arm and were dangerous to life. Both the injuries were the result of a single shot. The first injury was the injury of entrance and the second injury was the wound of exit. He gave his opinion on the query of the police that the injured person was fit to make a statement.
Thereafter the police recorded the statement of the deceased, while he was still alive, and this Medical Officer gave certificate to the effect that the injured person remained in senses throughout the period his statement was recorded.
' The deceased died on 13-5-1980 at 5 a. m. The post-mortem examination on the dead body of the deceased was conducted by Dr. Malik Muhammad Khan (P. W. 10) on 13-5-1980 who noted the same injuries on his person except that the number of wounds had been increased due to surgical interference and the wounds were stitched. In his opinion the cause of death was hemorrhage and shock as a result of the injuries caused by fire-arm. Time between injuries and death was about five days and between death and post-mortem examination about nine hours.
9. I have heard learned counsel for the parties and carefully perused the record. Learned counsel for the appellant first submitted that the investigation had been conducted in a dishonest manner in the instant case. On this point he referred to the statement of Muhammad Salim Khan Niazi S.-I.
(P. W. 12) in which he had stated that on 8-5-1980 on the information sent by the doctor he reached the hospital at Khushab. But in the cross-- examination he admitted that there was no ruqqa in the form of information received by him on the record on the basis of which he reached the hospital in the beginning. He also stated that it was incorrect to suggest that he removed the deceased in an injured condition from the spot to the hospital. Learned counsel submits that according to the statement of the Medical Officer who medically examined the deceased, while he was still alive, the patient had been brought by the police to the hospital and by this witness himself. The doctor does not mention the presence of the eyewitnesses at that time. Learned counsel next submitted on this point that this witness had stated in' the cross-examination that it was correct that there was a dispute as to the identity of the assailant between the deceased and his relatives at the time of the recording of dying statement and that such a thing was very common in such a situation. The argument of learned counsel is that if it could be deemed as a concession made by the Investigating Officer in favour of the accused party, then he should not be relied upon for having recorded the dying statement correctly. If it was not to be considered as a concession, even then the statement affected the reliability and questioned the honesty of this witness. It was also pointed out that the recovery evidence produced by this witness was being supported by again an enemy of the appellant and that, therefore, that evidence, although not considered reliable in the instant case, was fake. It is further pointed out that .12 bore pistols had been allegedly recovered at the instance of the appellant, whereas according to the medical evidence a bullet had been recovered from the dead body of the deceased. It was next argued that the deceased as well as the two eye-witnesses produced by the prosecution, in the instant case, were admittedly inimical towards the appellant and that they were partisan as well as interested witnesses including the deceased himself. Admittedly there was a long-standing enmity between the parties and there was sufficient evidence on the record in the form of the statements of the eye-witnesses themselves as to the nature of this long-standing enmity between them and the appellant. The basis of this argument is that the deceased himself being an interested person, had falsely named the appellant in his so-called dying declaration even though he might have not been able to identify the real assailant and that since the dying statement was tainted, it could not be corroborated by ocular testimony of interested witnesses which was also tainted. The reasoning of learned counsel is that the eye-witnesses were .Not present at the time of the occurrence and in this respect he states that their assertion to the effect that they took the deceased in an injured condition to the hospital was not being supported by the Medical Officer. So, according to learned counsel, the eye-witnesses are put-up witnesses and they had come forward to depose as against the appellant only because they happened to be inimical towards him. Learned counsel also pointed out that both these witnesses had thumb-marked the complaint as well as the statements which were recorded by the Magistrate and even if that evidence is discarded or ignored, the fact would remain that they were not reliable witnesses. Learned counsel vehemently argued that the dying declaration, in the instant case, was a suspicious piece of evidence for numerous reasons. It was argued that admittedly the relatives of the deceased were present at the time when his statement was recorded and that the mere fact of their presence would raise a presumption that the possibility of the dying statement being tutored could not be ruled out. It was also submitted that according to the Investigating Officer who recorded the so-called dying statement, there was a dispute regarding the identity of the assailant at the time of the recording of statement and this dispute arose on the issue between the relatives of the deceased and the deceased himself while he was still alive. Another argument which has been advanced about the unreliability of the dying statement was that the deceased died after five days and that there was sufficient time for his statement to be recorded by the Magistrate as he remained in his senses. In support of his arguments, particularly with regard to the possibility of tutoring being not excluded by the mere presence of the eye-witnesses or relatives of a patient. Learned counsel relied upon Muhammad Latif and another v. Muhammad Husain and others (1) ; All Akhtar Husain v. The State (2) ; Khan Zaman v. Kachkol etc. (3) ; Sher Bahadur v. The State (4) ; Muhammad Abdullah v. Muhammad Safdar Khan (5) ; rVahiduddin v. Allah Dina (6) ; Zarif Khan v. State (7) ; Muhammad Yasin v. The State (8) and All Asghar v. The State (9). It was submitted that in some of these citations, particularly Zarif Khan v. State, Muhammad Yasin v. The State and Ali Akhtar Husain v. The State, the accused was a single accused named in a false dying declaration being supported or corroborated by tainted ocular testimony. The crux of the arguments of learned counsel for the appellant is that when the deceased himself was an interested party, the eye-witnesses produced were partisans and interested, the investigation had been conducted in a dishonest {{FOOT NOTE}}
(1) PLD 1970 SC 406 (2) 1972 SCM R 40
(3) 1972 SCM R 574 (4) 1972 SCM R 651
(5) 1973 SCM R 26 (6) 1977 SCM R 72
(7) PLD 1977 SC 612 (8) 1978 SCM R 303
(9) PLD 1968 Pesh. 47 {{FOOT NOTE}} ' manner, then the possibility could not be ruled out that the deceased had been attacked by an assailant who could not be identified at the time of the commission of crime but since there was background of long-standing enmity between the appellant and the complainant side, the appellant was named as the single assailant of the deceased. It was pointed out that there was ample evidence on the record to show that there were many other enemies of the deceased as well who could have done the job. In the light of this reasoning it was submitted that in the circumstances, the case of the prosecution was doubtful and that the appellant should have been granted the benefit of doubt.
' Now, I proceed to record the arguments of Mr. Ijaz Husain Batalvi, Advocate for the complainant side. He submitted that the case of the prosecution is based on the following main points :-
(1) Dying declaration of the deceased which was recorded soon after the occurrence.
(ii)Dying declaration being corroborated by the ocular testimony of two eye-witnesses alleged to be interested and partisan.
(iii) Dying declaration being further corroborated or supported by circumstantial evidence in respect of
(a) the actual time of occurrence (1 p. m.),
(b) place of occurrence near bus-stand Khushab, (c)chances of the deceased having seen his assailant,
(d) closeness of the distance between the assailant and the victim at the time of firing of the shot (because according to the medical evidence the wound of entry had burnt the surrounding skin which indicated that the distance could not have been more than 4 feet), and (e)number of the accused persons named by the deceased in the dying statement. (In the present case only one accused person was named).
' Thereafter learned counsel took me through the three cases which had involved a single accused person and which had been cited by Mr. M. B. Zaman Advocate, learned counsel for the appellant, in support of his arguments. These are the cases in which a single accused person had been named in the dying declaration and the dying declaration had not been considered reliable. Mr. Ijaz Husain Batalvi Advocate pointed out that in Zarif Khan v. State the Supreme Court while commenting as to whether the dying declaration is to be considered as a weaker type of evidence, has observed that it stood on the same footing as any other piece of evidence and had to be judged in the light of surrounding circumstances and with reference to the principles governing the appreciation of evidence in criminal cases, and that it could not be laid down as an absolute rule of law, nor even of prudence, that a dying declaration could not form the sole basis of conviction unless it is corroborated. Each case was to be determined on its own facts keeping in view the circumstances in which the dying declaration was made so that the Court was satisfied that the same was true and genuine. If the Court came to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the identity of the assailants, there would be no need for further corroboration. But if it appeared to be unreliable by itself or suffered from some infirmity, then it could not form basis of conviction without corroboration. Then he took up 441i Akhtar Husain v. The State. In that case the dying declaration was based on a statement made by the deceased and recorded by the police is which there was mention of two stock police witnesses and these witnesses had been disbelieved by the Court. In that case the dying declaration was held defective. Learned counsel pointed out that the circumstances of the present case were distinguishable. Thereafter he took up Muhammad Yasin v. The State. In that case major portion of the dying declaration was found false and, therefore, it was held that it was not safe to base conviction on the sole dying declaration because it could not be accepted so far as the remainder was concerned. This dying declaration was recorded during the presence of the deceased's relatives and since major portion of the same was found false, it was held that it did not exclude the possibility of the deceased having been tutored. Learned counsel submitted that this judgment was also distinguishable. In short his argument on this point was that all the three authorities on which reliance was placed by the other side involving a single accused person being mentioned as the assailant in the dying declaration, were not in conformity with the facts of the present case and the principles laid down therein were not applicable so far as the present case was concerned. In support of his argument learned counsel relied on Niamat Ail v. The State This was also a case of dying declaration and there was nothing to suggest that the deceased would have substituted an innocent person for real culprit. The statement of the deceased was recorded in the form of F. I. R. And it was held that it was rightly treated as dying declaration and a very strong piece of evidence against the appellant. In that case it was further held that no further corroboration through any independent source was necessary. Reliance was also placed on Waheed Khan v. The State (2). In that case the identity of the accused was established and the dying statement was found genuine and true and corroborated by the medical evidence as well as evidence of the eye-witnesses. The conviction and sentence were upheld. Learned counsel read before me the following portion of the judgment :- "As to the identity of the culprit, the dying statement of the deceased Abdul Wahid is quite clear, as he knew the accused, and he was attacked from close quarters, so as to rule out any question of mistaken identity. Both the Courts below have accepted the dying statement as being genuine and true, and nothing has been said at the Bar before us to cast any doubt on this finding of the Courts below. As observed recently by this Court in Zarif Khan v. The State PLD 1977 SC 612 a conviction can safely be based on the dying statement alone, if the Court is satisfied as to its genuineness and truth. In the present case both these requirements are amply met by the statement made by the deceased at the police station promptly after the incident. Accordingly, even if no further corroboration was available, the petitioner's conviction could be sustained."
' Learned counsel next advanced his arguments as to whether the eye-witnesses in the instant case should or should not be believed because they had been stated to be partisan and interested. Learned counsel did not discuss the aspect that the witnesses were not partisan or interested. His reasoning was that even if they are accepted as such,, i,e, interested and partisan, even then in the circumstances of the present case, they should be believed. In support of his argument on this point he took me through Sharif v. The State (3). In that case the eye-witnesses were interested and partisan and it
(1) 1981 SCM R 61 (2) 1981 SCMR 1256
(3) 1973 SCM R 83 ' was held that corroboration may be afforded by anything in circumstances of the case which tended to satisfy the mind of the Court of the witness having spoken the truth. Reliance was also placed on Fazal Muhammad v. The State (1). In that case the incident had taken place during day- time and in an open place. The eye-witnesses were related to the deceased. Their evidence was corroborated by the recovery of blood-stained earth from the place opposite to accused's house, the medical evidence gave support to the prosecution version and the evidence in the circumstances was held to be rightly believed by the Supreme Court. Reliance was also placed on Roshan v. State (2). In that case there were also interested witnesses named and it was held that there was no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. It was held that it depended on the facts of each case and instances were not wanting when this Court had upheld the conviction of the accused based entirely on the testimony of interested witnesses. Reliance was also placed on Wazir Gul v. The State (3). In that case it 'was held that dying declaration need not be made under immediate apprehension of death. Last incriminating statement of the deceased, such as in F. I. R., it was held, could be legitimately treated as dying declaration. In that case the statement of the deceased, while still alive, was recorded in the form of F. I. R. But on his death was treated as dying declaration which was supported by medical evidence and ascension of the accused and it was held that this was sufficient to bring home the guilt of the accused. In the light of these authorities learned counsel argued that this Court has only to satisfy itself that firstly the dying declaration was truthful and genuine and that if the Court was to arrive at the conclusion that it was so, then the conviction and sentence can be sustained without any further corroboration. If such corroboration is necessary and it was coming forth from such ?Ye-witnesses who were stated to be interested and partisan, then in order to satisfy itself the Court must proceed to find or seek corroboration by the facts and circumstances. The reasoning of learned counsel mainly proceeds on the facts peculiar to the present case. The dying declaration was recorded by the police in the form of F. I. R. Soon after the occurrence, although the deceased may have died five days thereafter. The occurrence had taken place at 1 p. m. Near a bus-stand which was a public and crowded place. It was the month. Of May. The medical evidence indicated that the shot had been fired at the deceased from a very close range, and consequently there was a chance for the deceased to see his assailant whom he had already known. Furthermore, even if he had other enemies, he did not name a bundle of them but only Mentioned the appellant as the single accused person and as his assailant. Thus, according to learned counsel, the dying declaration was being corroborated by.
The circumstantial evidence in the instant case. He further pointed out that it was not a case in which the major portion of the dying declaration had been disbelieved as it had been held in Muhammad Yasin v. The State in which the dying declaration had been disbelieved and the finding of the Court was to the effect that the possibility could not be ruled out that due to the presence of the relations of the deceased around him it was a tutored statement. Learned counsel submitted that in the present case no such situation arises and, therefore, even if the relations of the deceased were present at the time of the making of the dying statement, it would be safe to rely on the same. Learned counsel {{FOOT NOTE}}
(1) 1973 SCM R 432 (2) PLD 1977 SC 557
(3) 1976 S CMR 471 {{FOOT NOTE}} ' further submitted that it was made in the presence of the doctor and the deceased as patient was in a fit condition to make the same. Furthermore, the doctor did not hear of any dispute between the relatives and the deceased about the identity of the assailant. Learned counsel then submitted that since the dying declaration was genuine and truthful and was being corroborated by the circumstances, no further corroboration was necessary. But if this Court for its further satisfaction looks for such corroboration, then even the testimony of interested and partisan witnesses, like the two eye-witnesses produced in the present case, should be believed if it is being supported by the circumstantial evidence. In the end, learned counsel argued that in the circumstances of the case,. The appellant had been rightly convicted under section 302, P. P. C. And this conviction should be maintained. He further pointed out that the reasons given by the trial Court for imposing lesser penalty were not cogent, for, he had observed that the appellant was a young man of 32 years, he did not repeat the pistol shot and that he was also described as being an old case of Pulmonary Tuberculosis with active lesion as mentioned in the medical certificate.
Learned counsel submitted that these could not be considered as grounds for the awarding of lesser penalty to him and that, therefore, his sentence should be enhanced from life imprisonment to death under section 302, P. P. C.
I have carefully considered the arguments advanced by learned counsel for the appellant as well as the complainant. Learned counsel for the appellant has first argued that the investigation, in the instant case, was conducted in a dishonest manner and to illustrate this point he had taken me through the statement of the Investigating Officer, which according to him, indicated that he did not receive any information in the form of a ruqqa from the hospital authorities but might have reached the spot and had taken the deceased in an injured condition himself to the hospital. In the connection learned counsel had also pointed out that according to the statement of the Medical Officer and his record, the patient had been brought by the police to the hospital and by the Investigating Officer himself, The doctor did not mention the presence of the eye-witnesses at the time the deceased was brought to the hospital in an injured condition. But in my view this ground is not strong enough to raise a presumption that the entire investigation had been conducted in a dishonest manner. In this very connection learned counsel had also referred to a portion of the statement of the Investigating Officer to the effect that a dispute did arise as to the identity of the assailant between the deceased and his relatives at the time of the recording of dying statement and that such a thing was very common in such a situation. First of all this fact is denied by the Medical Officer who was present on the spot and who had stated that no such dispute had arisen before him and furthermore that he remained present when the dyin C statement of the deceased was being recorded. Learned counsel for the appellant had attempted to argue that if the Investigating Officer had made concession in favor of the accused part then he could not be considered as a reliable person for having correctly recorded the dying statement and that if it was not to be considered as a concession, then the honesty of the Investigating Officer was questionable as it affected the reliability of hi statement. But in my view this statement of the Investigating Officer may not be a concession made in favor of the accused party. This argument bad also been raised before the trial Judge before whom the Investigating Officer had made his statement and who was in a better position to judge as to with what frame of mind he was making the statement, but the trial Court arrived at its own conclusion as discussed in paragraph 25 of the judgment. Learned counsel also stated that the Investigating Officer produced recovery witness who was an enemy of the appellant and in this way also he could be considered as having conducted the investigation in a dishonest manner. But the recovery evidence had been rightly disbelieved and, therefore, I am not inclined to comment on it. From the perusal of the statement of the Investigating Officer I am not left with the impression that the investigation had been conducted in a dishonest manner and, therefore, the argument of learned counsel on this point is not valid. Learned counsel for the appellant then argued that the deceased, in the instant case, was an interested person and that the two eye-witnesses produced by the prosecution were also partisan and interested witnesses. I agree that there is a longstanding enmity between the parties and there was sufficient evidence on the record in the form of the statements of the eye-witnesses themselves about the nature of the long-standing enmity between them and the appellant. But it must not be forgotten that despite the fact that the deceased might have had other enemies, he only named the appellant as his assailant and one else. Similarly, the eye-witnesses consistently only named him as the assailant of the deceased. The reasoning of the counsel to the effect that the deceased was not able to identify the real assailant and that the eye-witnesses might have not been present, is not convincing at all. It is a day-time occurrence which took place in a crowded place near a bus-stand. A shot was fired at the deceased from very close quarters. The dying statement of the deceased, while still alive, was recorded shortly after the occurrence E in the hospital by the Investigating Officer in the presence of the Medical Officer and the eyewitnesses had given cogent reasons as to why and how they were present near-about the deceased at the time when the occurrence took place. Had the deceased not been able to identify his assailant, it was reasonably probable that he might have mentioned names of more assailants with an object of involving as many enemies of his whom he could suspect or implicate. But this was not done by him. The argument of learned counsel that both these eye-witnesses had thumbmarked the complaint as well as the statements which were recorded by the Magistrate and that, therefore, also they were not reliable witnesses, is also not of much importance. Those proceedings are not part of the relevant record, they had been denied by the two eye-witnesses who had before the trial Court firmly and consistently stuck to the prosecution version as disclosed by them in their earlier statements recorded under section461, Cr. P. C. Furthermore, if the dying statement is eventually to be accepted, as genuine, there may not be any need for the consideration of the ocular testimony as corroborative piece of evidence. Learned counsel also vehemently argued that the dying declaration was a suspicious document. It was submitted that the relatives of the deceased were present at the time of the recording of his statement and the mere fact of their presence was sufficient to raise the possibility that the dying statement was tutored. It was also submitted that the Investigating Officer who was recording the dying statement, had stated in the cross-examination that there was a dispute regarding the identity of the assailant at the time of the recording of the statement and this dispute had arisen on the said issue between the relatives of the deceased and the deceased himself while he was still alive. In order to show that the dying declaration was suffering from infirmity as it might have been tutored, learned counsel had produced numerous authorities which have, been cited in this judgment. He also produced addtional authorities, namely, Muhammad Ali v. The State (1), Latif v. The State (2) and Allah Ditta v.
The State (3). But in my considered view these {{FOOT NOTE}}
(1) 1976 P Cr. L 7 1127 (2) PLD 1978 Lab. 337
(3) PLD 1961 Lab. 244 {{FOOT NOTE}} ' are distinguishable. It was also argued that the deceased died five days after the recording of his so-called daying statement and that during this period the Investigating Officer should have got his statement recorded by a Magistrate. But this argument also does not have any force. The main point is that in the instant case although on the basis of the statement of the deceased, while he was still alive, F. I, R. Was recorded, the said F. I. R. Was treated as a dying declaration on the death of the deceased which took place five days thereafter. However, the said dying declaration was definitely recorded soon after the occurrence. The second important point is that apart from the dying declaration being corroborated by the ocluar testimony of two eye-witnesses who are stated to be interested, it was further being corroborated F by the circumstantial evidence and the elements of circumstantial evidence are extremely important. These are that the occurrence took place during day-time at 1 p. m. In the month of May, 1980 ; that it took place near bus-stand Khushab which is expected to be a crowded place ; that when th shot was fired at the deceased, the distance between the assailant and the victim was very close because according to the medical evidence the wound of entry had burn marks which indicated that the distance could not have been more than 4 feet ; that in such circumstances the deceased was certainly in a position to see his assailant and since the assailant i,e, the appellant, was known to him already as an old enemy.' no question of identity of th assailant was involved ; and finally in the dying statement the deceased had only named one assailant, i,e, the appellant, and none else. Thus, it is evident that the dying declaration was genuine because it was being corroborated or supported by important pieces of circumstantial evidence. In Zarif Khan's case a sound principle has been laid down to the effect G that each such case is to be determined on its own facts keeping in view the circumstances in which the dying declaration was made so that the Court was satisfied that the same was true and genuine, and if the Court was convinced that the dying declaration was genuine, there would be no need for further corroboration. It is possible that at the time of the recording of the dying statement the relatives of the deceased may be present, but from their mere presence it would not be correct to draw the inference that the dying statement might have been tutored. In fact, in this respect also each case of the recording of dying statement was to be determined on its own facts. In Muhammad Yasin's case the dying declaration was not considered as false because it was recorded during the presence of the deceased's relatives, but for the reason that the major portion of the same was found false and it was for that reason that it was held that it did not exclude the possibility of the deceased having been tutored. In my view, so far as the facts of the present case are concerned, Niamat Ali's case, cited by learned counsel for the complainant is more relevant. Similarly, the principle laid down in Waheed Khan's case is also applicable. Now the next point for consideration is as to what weight is to be attached to the ocular testimony which is stated to be corroborating the dying statement. The question is, even if the eye- witnesses are interested or partisan,. Should they be relied upon in the circumstances of the present case ? On this point an elaborate argument was addressed by learned counsel for the complainant placing reliance on Sharif's case ; Fazed. Muhammad's case ; Roshan's case and Wazir Gul's case. In the light of these authorities I am convinced in my mind that in the instant case not only the dying statement was genuine but even if further corroboration is requited of the same, it was being corroborated r, or supported by the facts and circumstances. Since the dying statement is" supported by circumstantial evidence, I have no hesitation to accept the ocular testimony also as corroborating the dying statement, because despite the fact that the two eye- witnesses, in the instant case, are interested partisan, their statements are consistent and could be stated to have bee supported by the circumstantial evidence. In the light of what 1 have discussed above, in my opinion, the prosecution has succeeded in establishing its case as against the appellant beyond any shadow of doubt. Therefore,/ he has been rightly convicted under section 302, P. P. C. And this conviction is accordingly maintained. At this stage it was argued by learned counsel for the complainant that the trial Court should not have imposed lesser penalty on the appellant as the reasons advanced for doing so were no cogent. But I do not agree with him there.
While recording the conviction of the appellant under section 302, P. P. C. The trial Court awarded lesser penalty to him mainly for the reason that he was an old case of Pulmonary Tuberculosis with active lesion as stated in the medical certificate. I am, therefore, of the considered view that not only the conviction of the appellant under section 302, P. P. C. Be maintained but the sentence of life imprisonment as well as the sentence of fine awarded to him should also be maintained, and I order accordingly.
' This appeal is accordingly dismissed with the observation that while computing the sentence of life imprisonment of the appellant the Jail authorities should grant him the benefit of the provisions of section 382-B of the Code of Criminal Procedure.
' In the light of the above discussion, I do not find any substance in Cr. R. No, 769 of 1982, which is accordingly dismissed in limine.