' KAMAL MUSTAFA BOKHARY J.-Faiz Muhammad, aged 40 years, son of Khairan, Ashiq, aged 28 years, son of Khuda Bakhsh, Hazur Bakhsh, aged 35 years, son of Khair Muhammad and Nazar Hussain Shah alias Nazar Shah, aged 30 years, of Ghaus Bakhsh Shah were tried for the murder of Ghulam Asghar Shah, aged 40 years. The learned Additional Sessions Judge, Dera Ghazi Khan, on 16th August, 1981, convicting them under sections 302/34, P. P. C. Sentenced each of them to death subject to confirmation by this Court and to pay a fine of Rs, 1,000 or in default of its payment to further undergo rigorous imprisonment for six months. All of them were also ordered to pay Rs, 1,000 each as compensation to heirs of the deceased under section 544-A, Cr. P. C. And in default thereof to suffer rigorous imprisonment for six months. The convicts have filed this appeal against their conviction and sentences and the trial Court has sent Reference for confirmation of this death sentence. This judgment will dispose of both the matters.
2. On 19th July, 1980 at about 10-00 a. m. Ghulam Asghar Shah deceased was returning home in Chak Doem, Mauza Wang, after giving bath to his buffalo on canal minor, when Ashiq and Faiz Muhammad appellants appeared and held him in japha. Nazar Shah and Hazur Bakhsh appellants carrying a hatchet each appeared from behind date trees. Hazur Bakhsh gave a hatchet blow on right leg of the deceased as a result of which his right leg was severed below the knee. Nazar Shah appellant gave hatchet blow on right arm-wrist of the deceased. During this time Ashiq and Faiz Muhammad continued to hold the deceased in japha. The cries raised by the deceased attracted Nabi Bakhsh P. W., Nazar Hussain Shah P. W., Kalu and Allah Bakhsh (given up) who reached the spot and witnessed the occurrence. The appellant escaped. Nazar Hussain Shah P. W. And Nabi Bakhsh P. W. As well as Kalu and Allah Bakhsh (given up witnesses) carried the deceased in injured condition to the Civil Hospital, Kot Mithan.
' About 8 or 9 days before the present occurrence the deceased had got impounded cattle of Faiz Muhammad appellant in the cattle pond of Mauza Wang.
3. On receipt of a rukka Riaz Ali Shah, A. S.-I. Recorded the above statement of Ghulam Asghar Shah in the Civil Hospital, Kot Mithan, at 4-00 p. m. On which a formal F. I. R. Was registered at the Police Station Kot Mithan, on 19th July, 1980 at 4-10 p. m. The distance between the place of occurrence and the Police Station was six miles.
4. Ghulam Asghar Shah died in the hospital at 10-45 p. m. On the same day. On receipt of rukka to this effect from the doctor, Abdul Hameed, S. .I. P. W. Reached Civil Hospital, Kot Mithan, on 19th July, 1980 at 11-00 p. m. And despatched the dead body of Ghulam Asghar Shah deceased to the mortuary for autopsy after completing formalities. He went to the spot on 22nd July, 1980. He arrested the appellants when they were produced before him by Dur Muhammad. He secured bloodstained shirt (P. 4) vide memo. Exh. P. Q. After getting it removed from the person of Hazur Bakhsh appellant and also took into possession bloodstained shirt (P. 3), vide memo. Exh. P.
0. After getting the same removed from the person of Ashiq appellant. On 26th July, 1980 Hazur Bakhsh led him to the recovery of blood-stained hatchet (P. 6) which was secured by memo. Exh. P.
S. On the same day Nazar Shah appellant led him to the recovery of hatchet (P. 7) which was taken into possession, vide memo. Exh. P. R. After completing the investigation he challaned the appellants in Court. The shirts of Hazur Bakhsh and Ashiq appellants as well as a hatchet recovered from the former and earth secured from the spot were found stained with human-blood by the Chemical Examiner and the Serologist.
5. Dr. Dilbar Hasan P. W. Conducted post-mortem examination on the dead body of the deceased on 20th July, 1980 at 11-00 a. m. And found the following three injuries on it :-
(1) An incised wound cutting through and through right leg about five inches below the right knee.
(2) An incised wound 3" x 3/4" x bone cut on the outer side of the right leg li" below the right knee.
(3) An incised wound 6-1" x 31" x cutting bones all tissues and blood vessels on the right forearm, 3,1" below elbow joint. The fore-arm was attached with a tag of skin. Old amputated left arm.
' In the opinion of Doctor death resulted from shock, excessive haemorrhage and bleeding from the three injuries which were sufficient to cause death in the ordinary course of nature. All injuries were caused with sharp-edged weapon. He gave probable time that elapsed between injuries and death as 12 to 13 hours and same time between death and post-mortem examination.
6. At the trial Nazar Hussain Shah (P. W. 8) and Nabi Bakhsh (P. W. 9) were examined as eye- witnesses of the occurrence while the other two eye-witnesses, Allah Bakhsh and Kalu, were given up as unnecessary. The incriminating recoveries of shirts and hatchet from Hazur Bakhsh, Nazar Shah and Ashiq were proved by Shamsud Din (P. W. 11) and Investigation Officer Abdul Hamid S.-I.
(P. W. 12) while Kalu Khan from public was given up as unnecessary.
7. The statement of Ghulam Asghar Shah deceased was recorded by Riaz Ali Shah, A. S.-I. In the Civil Hospital, Kot Mithan on 19th July, 1980. Since Riaz Ali Shah was declared a proclaimed offender in a case under Zina Ordinance against him that statement was proved by Abdul Hamid (P. W. 12) who was conversant with his handwriting while his non-availability was proved by Muhammad Safdar (P. W. 10). The statement of deceased was treated as a dying declaration and was marked as Exh. P. D.
8. The appellants pleaded not guilty to the charge and denied recoveries from their person and at their instance. Faiz Muhammad appellant stated that he was implicated due to enmity and was present at the shop of Ghulam Rasul Shah at the time the alleged occurrence took place in abadi of Mauza Wang. Hazur Bakhsh, Nazar Shah and Ashiq appellants stated that they were implicated because they refused to vote for Shamsud Din P. W. And annoyed Sardar Nasrullah Khan Dareshak who had asked them to do so. Appellants examined Hassan Muhammad alias Hasnoo as D. W. 1 who deposed that Nabi Bakhsh P. W. Never cultivated the land owned by him and his brothers in the area of Mauza Wang and never lived on their land but was resident of Tehsil Alipur, District Muzaffargarh. He also stated that on hearing the occurrence when he went to the spot the deceased on his query told him that the deceased could not identify the assailants.
9. The trial Court disbelieved incriminating recoveries from Hazur Bakhsh, Nazar Shah and Ashiq appellants and did not believe motive alleged by the prosecution against Faiz Muhammad and Ashiq appellants. It also did not believe the testimony of Nazar Hussain Shah (P. W. 8) and found that he was a chance witness and it was doubtful that he was available to see the occurrence. The appellants were convicted on the basis of dying declaration Exh. P. D. Which was found to have been corroborated by the eye-witness Nabi Bakhsh (P. W. 9), the motive alleged by the prosecution and the medical evidence.
10. We have been taken through the entire evidence in this case which we have ourselves read and considered in the light of the submissions made by the learned counsel for the parties.
11. The F. I. R. In this case was registered on the statement of deceased which was treated as a dying declaration after his death on the day of occurrence. It was not put to the appellants in their examinatio under section 342, Cr. P. C. And cannot be used as basis for their conviction. It was recorded by Riaz Ali Shah, A S.-I. He became accused of offence under section 16 of Ordinance VII of 1979 and was declared proclaimed offender. Although his non-availability and handwriting wer proved by Muhammad Safdar and Abdul Hameed P. Ws. None was examined to prove what was stated by the deceased. The defence did not have the chance to cross-examine Riaz All Shah. The deceased was also known as Achha Shah. He was challaned in two theft cases. He had two wives, Mst. Bakhtan and Mst. Sakina. The latter was wife of one Talib. It was suggested that deceased had abducted Mst. Sakina. He did not have a clean record. The evidence shows that Lal Shah, brother of deceased and eye-witnesses were present when statement of deceased was recorded in the Civil Hospital. It is probable that deceased was prompted by them. It is also not clear if the deceased was actually fit to make statement. His right leg had been severed and right forearm was attached only with a tag of skin. It is doubtful if he continued to remain fit throughout during the time his statement was recorded. Therefore, we consider it unsafe in the administration of criminal justice to rely on this piece of evidence. The dying declaration is ruled out of consideration.
12. The occurrence was claimed to have been witnessed by four persons out of whom Allah Bakhsh and Kalu were given up as unnecessary while Nazar Hussain Shah (P. W. 8) was disbelieved by the trial Court. He was son-in-law of the deceased and a close relation because his father is first cousin of deceased. His testimony was rightly excluded by the trial Court. We are left with Nabi Bakhsh (P. W. 9). He claimed to be resident of Mauza Wang where he had a house one acre away from the spot towards the east and had been cultivating land of Hasnoo Muhajir for about two years before the present occurrence. He also gave out that he was originally resident of Basti Gabbar Arain, Tehsil Alipur, District Muzaffargarh, about 40 miles away from the spot. His house was not shown in the site plan. Hassan Muhammad alias Hasnoo appeared as D. W. 1 and deposed that Nabi Bakhsh never cultivated land owned by him and his brothers nor he lived in that Mauza. His name is also not mentioned as a tenant in the khasra girdawari. He admitted in cross-examination that his son Abdul A ziz was challaned under section 354/452, P. P. C. When Akbar Shah and Lal Shah, real brothers of the deceased, stood surety for him. It was suggested to him that he did not see the occurrence and was not resident of the area. In the dying declaration decaseed had stated that he was returning home from Wang minor after giving bath to his buffalo when he was attacked but Nabi Bakhsh (P. W.) did not see any cattle near the place of occurrence. He claimed to have been attracted from a watercourse of Wang minor, about two acres away from his house where he had taken his cattle for watering. He was a chance witness. On being attracted he could not observe the individual act of the four appellants from the distance of 66 feet he claimed to have seen it. According to him Ashiq and Faiz Muhammad held the deceased in japha when Hazur Bakhsh and Nazar Shah gave one hatchet blow each to the deceased. If the deceased had been so held the appellants holding him must have suffered injuries and in particular he did not depose truthfully when he stated that both arms of the deceased were free at the time he was injured. His testimony is not consistent with the dying declaration and the medical evidence. We are satisfied that Nabi Bakhsh P. W. Was not available and did not see the occurrence. We are of the view that he is not a truthful witness and conviction cannot be maintained on the basis of his testimony as a sole eye-witness.
13. The motive alleged by the prosecution was not believed by the trial Court against Faiz Muhammad and Ashiq. Talib Hussain who got C the cattle released from the cattle pond was not examined. Name of Faiz Muhammad as owner of cattle impounded in the pond was not entered in the record. The entry in the relevant register of cattle pond was made by Wahid Bakhsh who was not examined by the prosecution. The motive given by Muhammad Iqbal (P. W. 6) cannot be said to have been proved by the prosecution. Thus recoveries of incriminating articles from three appellants were rightly disbelieved by the trial Court.
' For the foregoing reasons we accept the appeal, set aside conviction and sentences of the appellants and acquit them.
' Death sentence of appellants is not confirmed.