' S.A. NUSRAT, J.-- This appeal by special leave is from the judgment of the Lahore High Court, dated 18th March, 1979 whereby the appeal of the appellants, Labha alias Bhola and Nazir Ahmad, was dismissed and their convictions and sentences awarded by the learned Additional Sessions Judge under section 302, read with section 34, of the Pakistan Penal Code were maintained and the sentence of death awarded to appellant Labha was confirmed.
2. The appellants Labha and Nazir were tried and convicted by a learned Additional Sessions Judge, Gujranwala under section 302/34, P.P.C. For having committed the murder of one Muhammad Sharif in furtherance of their common intention on 12th November, 1974 at about 9-00 p.m. In the area of Gall Bhabharian, Gujranwala. By his judgment dated 13th June, 1977, the learned Additional Sessions Judge, held both the accused guilty and convicted them under section 302/34, P.P.C. Labha was sentenced to death and a fine of Rs,5,000 or in default to suffer further R.I. For 2/1-2 years. Nazir was sentenced to imprisonment for life and a fine of Rs,5,000 or in default R.I. For 2/1-2 years.
3. The case of the prosecution was that a day prior to the occurrence, i,e, 12th November, 1974, the deceased had taken the cattle-shed of one Muhammad Din Mughal on lease which was not liked by the appellants who were cousins inter se because they wanted the cattle-shed in question for themselves. Feeling aggrieved of such action of deceased, they went to his cattle-shed on 12th November, 1974 at about 9-00 p.m. At that time, the deceased and his brother Abdul Latif (P.W.3) were tethering their cattle for the night. The appellants called the deceased who came out on the street followed by Nazir appellant. There was some altercation between the parties whereupon Nazir held the deceased in a Japha, while Labha took out a knife from the fold of his Chadar and struck him thrice in the chest. The deceased and Latif raised alarm which attracted Bhola and Tufail P.Ws. On the scene of the occurrence who intervened and tried to catch the accused, but they managed to escape. The deceased rushed to the Civil Hospital, Gujranwala by Abdul Latif complainant in injured condition where he was admitted as an indoor patient. On the information supplied by the hospital authorities, A.S.I. Muhammad Ismail, Incharge of the Police Station, Sabzimandi, reached the hospital where he met the complainant Abdul Latif, P,W.3 at about midnight and recorded his statement, a formal F.I.R. Was registered at the Police Station City, Gujranwala, on the same night at 12-40 a.m. The A.S.I. Muhammad Ismail who investigated the case enquired from Dr. Gulzar Ahmad who was looking after the deceased if the deceased was in a fit condition to make a statement. On 15th November, 1974, on the certificate of Dr. Gulzar Ahmad that the deceased was in a fit condition to make a statement, Mr. Shafiuzzaman Khan, Duty Magistrate, who exercised first class powers, was requested to record the statement of the deceased. The Magistrate on reaching the hospital at 9-40 p.m, first obtained a certificate of fitness from the doctor and recorded the statement of the deceased, Exh.P.J. After he deceased had concluded his statement, Mr. Shafiuzzaman Khan, Duty Magistrate again obtained a certificate of fitness from the doctor who had remained present throughout with the deceased while his statement was being recorded. The deceased died shortly thereafter.
4. The post-mortem examination of the deceased was conducted by Dr. Gulzar Ahmad and it was found that he had three incised wounds in the region of chest, one of which was described to be sufficient in the ordinary course of nature to cause death.
5. The appellants were arrested by A.S.I. Muhammad Ismail on 13th November, 1974 when Labha led the police party to his cattle-shed from where he produced a blood-stained knife. The memorandum prepared on the occasion was attested by Zahoor Ahmad and Abdul Rashid who were however not produced at the trial. The knife was later sent to the Chemical Examiner and the Serologist who reported that the blood on the knife was of human origin.
6. The appellants pleaded not guilty to the charge against them and it was alleged that they had been falsely implicated on account of enmity. They did not lead any evidence in defence.
7. In support of its case, the prosecution examined one eye-witness, namely, Abdul Latif (P.W.3) brother of the deceased who had lodged the complaint. The other two witnesses Bhola and Tufail, who were also cited as eye-witnesses in the F.I.R., were however given up by the prosecution as having been won over. At the trial, Abdul Latif, P.W. Associated himself with the accused party by admitting as correct each and every suggestion favouring the defence version and made certain departures from the story he had narrated in the F.I.R. And before the Committing Magistrate whereupon he was declared hostile by the prosecution and was cross-examined by the parties.
Accordingly, nn reliance was placed by the learned Sessions Judge on his statement which was ruled out of consideration. The learned trial Court relied upon the motive, dying declaration, recovery of blood-stained knife, supporting statement of the complainant and the medical evidence and convicted and sentenced the appellants as hereinabove mentioned.
8. The entire evidence was reappraised by the learned High Court in appeal and in murder reference, and in addition to the evidence of Abdul Latif, which had earlier been also discarded by the learned trial Court, the recovery of the blood-stained knife was also excluded. The learned High Court, however, relying upon the dying declaration of the deceased, Muhammad Sharif, which was found to be unimpeachable, maintained the conviction and sentence awarded to the appellants by the trial Court.
9. It was contended by the learned counsel for the appellants that the dying declaration alone was not sufficient for maintaining the conviction of the appellants without any corroboration. Besides, the dying declaration was itself attacked on the ground that it was recorded three days after the occurrence and during period the relatives of the deceased had been regularly visiting him and as such the possibility of the names of the appellant been provided to the decease' could not be ruled out. In this connection, the learned counsel referred to the statement of Dr. Gulzar Ahmed who had stated in the cross-examination that at the time of recording of the statement by the Magistrate there were about 22 to 23 patients in the same ward and their relatives were present near their patients. Likewise Shafiuzzaman Khan, Magistrate First Class, had also said that there were some persons near the injured.
10. This above contentions were also raised before the learned High Court and were rightly ruled out on the ground that there was nothing on record to indicate that the deceased, who was attacked from a close range, was himself not in a position to have identified the accused or had falsely added their names. In the circumstances, there was no occasion for the friends and relatives of the deceased to supply him the names of his assailants. There was also no evidence to show that the deceased had any enmity with the appellants. The statement of the deceased was recorded with due care by a First Class Magistrate in the presence of a medical officer who had certified before and after the recording of the same about the fit condition of the deceased. The said dying declaration was held to be untainted and truthful concurrently by both the learned Courts and we are satisfied that in doing so no principle of law has been violated. The judgment of the learned High Court is, therefore, unexceptionable in so far as the conviction awarded to the appellant Labha is concerned. The case of the appellant Nazir, however, stands on a different footing. No doubt, the deceased had mentioned in his dying declaration that Nazir had held him in a Japha while Bhola had struck him thrice with knife. According to the F.I.R. Some altercation had taken place between the parties before actual stabbing was done by the accused Labha, but there is no mention of the same in the dying declaration. In the absence of any antecedent facts which had led to stabbing, the role of Nazir, in the circumstances, remained shrouded in mystry. Further according to the prosecution the accused Bhola had brought out the knife from the fold of his Chadar which indicates that the appellant Nazir may not have been aware that the appellant Labha was so armed and would use the weapon for causing injuries to the deceased. In the circumstances, the pulling out of the knife out of his Dabh by the appellant Labha on the spur of the moment and his use of it was thus his individual act suddenly taken which cannot be held to be indicative of common intention. In this view of the matter that the action of Labha was individual and sudden and in the absence of any common intention to commit the murder of the deceased, the appellant Nazir deserves benefit of doubt. The conviction and sentence awarded to him are set aside and his appeal is allowed. He shall be released forthwith unless required on any other charge.
11. At the conclusion of the hearing of the appeal, the three brothers of the deceased, viz., Muhammad Bashir, Muhammad Siddiq and Abdul Latif filed their affidavits stating that they are closely related to the appellants and in order to eliminate the possibility of the dispute, which is the subject-matter of the appeal, turning into a family feud and to restore peace and tranquility amongst themselves,they had granted pardon to the appellants in the name of God Almighty. In this view of the matter and the rule laid down by this Court in the case of Muhammad Bashir v. The State PLD 1982 SC 139 and Iftikhar Ahmad v. The State PLD 1982 SC 277 we would reduce the sentence of death of the appellant Labha to imprisonment for life, and would direct that in computing his sentence benefit under section 382-B of the Criminal Procedure Code shall be extended to him. With the above modification, his appeal is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.