' MIAN BURHANUDDIN KHAN, J.-These petitions are directed against a consolidated Order of a Division Bench of the Lahore High Court, dated 15-3-1961 passed in Criminal Appeal 1141 of 1978 (Murder Reference No, 38 of 1979) and Criminal Revision 746 of 1980. This order will dispose of both the aforementioned Criminal Petitions for Leave to Appeals Nos. 39/R and 236 of 1981.
2. On 8-3-1976 at 11.30 a. m. Fateh Sher deceased lodged a report that at about 11 a. m. The same day Dost Muhammad, petitioner in Cr. P. L. A. 236 of 1981 alongwith Sultan Sherbaz, Dad and Muhammad Iqbal (respondents Nos. 1 to 4 in Cr. P. L. A. 39/R of 1981) armed with guns came from the southern side of the hotel of Abdur. Rahman and after raising '.a Lalkara Dost Muhammad fired at him injuring him on his forehead. Second shot was fired by Muhammad Iqbal accused/respondent hitting him on his right flank; third shot was fired by Sultan accused/respondent which wounded him on his left wrist as a result of which he fell to the ground.
On the alarm raised by the victim Fateh Sher people from the neighbourhood arrived who rescued him from the assailants. .Thereafter the accused ran away towards the City. The deceased also mentioned the presence of. Ghulana Muhammad P. W. 15 who had a tea-stall near the scene of crime and another post Muhammad a witness given up by the prosecution,
3. The motive for the crime revealed by Fateh Sher deceased in his report is that there was a dispute about a residential plot of land in Chakrala town, between him and Sultan accused/respondent. The latter had filed a suit in the Court of Civil Judge, Mianwali regarding the said plot and in consequence of his being a contesting defendant, the accused fired and wounded him. " The report was recorded on the day of occurrence 1. e. 8-3-1975 in P. S. Chakrala, District Mianwali at about 11-30 a. m. By Sultan Sikandar, Moharrir Head Constable. Fateh Sher injured was sent to a hospital where he succumbed to his injuries the next day i,e,, 9-3-1976 at 3 a. m.
4. All the accused were tried by the learned Additional Sessions Judge, Mianwali, who, vide his judgment dated 25-11-1 978 awarded death sentence to Muhammad Iqbal and Dost Muhammad (petitioner in Cr. P. L. A. 236 of 1981) under section 302, read with section 149, and a fine of Rs, 2,000 each. The remaining accused Sultan, Sherbaz and Dad were sentenced to life imprisonment under section 302/149 and fine of Rs, 2,000 each. 2/3rd of the fine, if recovered, was ordered to be paid as compensation under section 344-A, Cr. P. C. To the heirs of the deceased each of the accused was also convicted under section 148, and sentenced to two years' R. I.
5. The convicts filed appeal before the Lahore High Court and Reference of death sentence of Muhammad Iqbal and Dost Muhammad was also placed before the learned High Court who, vide their judgment, dated 15-3-1981 maintained the death sentence awarded to Dost Muhammad but acquitted all the remaining accused.
6. Muhammad Khan son of the petitioner in Cr. P. L. A. No, 39 of 1981 has assailed the judgment of the Lahore High Court as regards the acquittal of Sultan, Sherbaz, Dad and Muhammad Iqbal on the ground that there is dying declaration of the deceased regarding the complicity of the accused/ respondents in the commission of the murder of Fateh Sher deceased further corroborated by the ocular testimony of Ghulam Muhammad, P. W. 15 and Abdur Rehman, P. W.
16.
7. Considering the contentions raised by the learned counsel for the petitioner Muhammad Khan, we refer to the evidence of the two eye-witnesses namely Ghulam Muhammad, P. W. 15 and Abdur Rahman, P. W.
16. According to the former P. W. On the day of occurrence Dost Muhammad, P. W. (given up by the prosecution) and the witness (P. W. 15) were going to their houses after having tea at the tea-stall of Abdur Rahman, P. W.
16. Fateh Sher deceased was a few steps ahead of them when the accused appeared; Dost Muhammad petitioner challenged the deceased and fired at him hitting on his forehead. Iqbal, acquitted accused followed suit and his shot hit the deceased on his right flank. Thereafter Sultan, another acquitted accused, fired with his gun hitting the deceased on his left hand near the wrist.
He, alongwith the other P. W. Raised an alarm whereupon the accused decamped from the spot.
They came to the injured Fateh Sher, who was then in his senses. They took him on a cot to Police Station Chakrala where the deceased himself lodged the report. In cross-examination, the witness admitted that he lives at a distance of one furlong from the scene of occurrence.
8. Abdur Rahman, P. W. 16 stated that he was present at his tea-stall situate in village Chakrala near the spot. Ghulam Muhammad, Dost Muhammad P. Ws. And Fateh Sher deceased left his tea- stall and proceeded in the direction of their houses. When they reached the western lane of his tea-stall the accused Dost Muhammad, petitioner Sultan, Sherbaz, Iqbal and Dad (the acquitted accused) came there armed with guns. Dost Muhammad raised a Lalkara and challenged Fateh Sher deceased and then fired with his gun hitting the right side of Fateh Sher's deceased. The second fire was fired by Iqbal hitting the deceased on his right flank and the third shot was fired by Sultan injuring Fateh Sher on his left hand. Thereafter all the five accused, named above, fired again at Fateh Sher; he, Ghulam Muhammad and Dost Muhammad P. W. Raised alarm and the accused-deceased. Fateh Sher injured was in his senses; he was placed in a cot and was taken to the police station where he himself lodged the report. This witness was cross-examined at length.
The suggestion made to him that he is inimical witness and was biased against the accused, was denied by him and he expressed ignorance regarding the abduction of Mst. Kaniz Fatma daughter of Sherbaz by his maternal-cousin Jahangir and that a case under section 363/366/452/148/ 149 was registered against Jahangir on 2-8-1968. No doubt this witness had a tea-stall near the spot and his presence cannot be disputed but at the same time the Court has to see whether his statement inspires confidence and whether it is to be accepted in its entirety without sifting the evidence against each of the accused implicated in the commission of crime.
9. Learned counsel for petitioner Muhammad Khan in Cr. P. L. A. 39/R addressed the Court on the point that the judgment of the High Court in acquitting the four accused/respondents is not based on proper appraisal of the evidence on record that the learned Judges were not justified in disregarding the F. I. R. Lodged by the deceased and relied by the prosecution as also the dying declaration; the statement of the deceased was recorded by the Police Officer whose testimony and correctness of his statement has not been shattered by the defence; that even the doctor found the deceased alive at the time of examination when he (Fateh Sher deceased, was admitted in the hospital and died on 9-3-1976; that according to Dr. Akram, P. W. 12 he examined Fateh Sher on 8-3-1976 and found four fire-arm injuries i. e.
(i) fire-arm entry wound on forehead 1/3' x 1/5% (ii)fire-arm entry wound on the back side of left hand 1/3' x1/3' with an exit wound on the palmer side on the wrist joint measuring 1/3' x 1/3',
(iii) fire-arm entry wound on the right flank under the last rib 1/2" x 1/3' going inward and downward, and
(iv) fire-arm entry wound also on right flank 1/3' x 1/3'.
' The argument built by the learned counsel is that the above-mentioned injuries have been caused by more than one shot and that the evidence of the two eye-witnesses find corroboration from the medical evidence; that the deceased was fired at by more than one person and the learned trial Judge found all the accused guilty and his findings are based on proper and thorough appraisal of the evidence and demanour of the witnesses; that there were pellet marks on different walls of the adjoining houses and the tea-stall of Abdur Rahman, P. W. 16 alongwith the recovery of several pellets from different places would establish that there were more than one assailants; that the learned Judges of the High Court having agreed that Ghulam Muhammad and Abdur Rehman were natural witnesses of the crime, fell into error by basing their judgment on minor omissions about the details which on sound principles of administration of justice would not discredit a witness that Sultan accused had the rancour against the deceased while his co-accused were closely related to him (Sultan); that the evidence of motive, medical evidence and circumstantial evidence provide adequate corroboration if at all needed against the acquitted accused/respondents and lastly the learned counsel urged that there being no motive for a false charge the observation of the learned High Court Judges regarding the truthfulness of the two witnesses cannot be sustained.
10. We have examined the contentions raised by the learned counsel and agree with the finding of the learned Judges; which reads: "From a proper consideration of all these circumstances, it appears that Ghulam Muhammad P. W.
15 and Abdul Rahman P. W. 16 are not entirely truthful witnesses, even though they appear to be natural witnesses and did see the occurrence and that some corroboration of their testimony is required, before the appellants can be held guilty of the charge imputed to them. The only corroboration in the instant case against any of the appellants is the recovery of the unlicensed gun P. 12 at the instance of Dost Muhammad, appellant, on 20-4-1976 which matches with the crime empty P. 9 recovered from the spot. The recovery of the blood-stained gun P. 14 at the instance of Sherbaz, appellant, and the unlicensed gun P. 15 at the instance of Muhammad Iqbal, appellant is of no corroborative value as no empties were found matching the guns recovered. The evidence as regards the recovery of the crime empty front the spot on the date of occurrence i. e.
8th March, 1976, is furnished by Saif Ullah P. W. 10 and Mehrban Khan A. S. I. P. W.
18. The third witness Khan Muhammad was not produced at the trial, but was given up as unnecessary. Saif Ullah P. W. 10 is the son of Ghulam Muhammad, P. W.
15. He deposed that the said crime empty was picked up from the spot by the Investigating Officer and made into a sealed parcal vide Memo. Exh. P.S.
11. Agreeing with the reasoning of the learned High Court Judges we find that the case against the respondents in Cr. P. L. A. No, 39/R of 1981 is not free from reasonable doubt and yet for another reason also i. e. The medical evidence Dr. Muhammad Akram Khan, P. W. 12 who performed the post-mortem examination on the dead body of Fateh Sher deceased found-
(1) A fire-arm wound of entry 1/3" x 1/3' on the front of forehead just under the hairy margin;
(2) A fire-arm wound of entry on, the back side of the left hand measuring 1/3 x 1/3";
(3) A fire-arm wound of entry on the right flank under the last rib measuring 1/2' x 1/5' going inward and downward. Probe was not done, and
(4) A fire-arm wound of entry on the right flank 1/3' X 1/3". Probe not done. It was 3 below and on the back side of injury (3).
' Therefore, the correct conclusion would be that if five persons had fired at the deceased with shot guns simultaneously from equal distance, the number of injuries would have been greater. This fact, though mentioned in the F. I. R.-cum-dying declaration, does not find support from the doctor's observation. Hence, we do not find any force in this petition and the same is accordingly dismissed.
12. Learned counsel for petitioner Dost Muhammad (in Cr. P. L. A. No, 236/R of 1981) who had been sentenced to death by the trial Court and whose death sentence has been confirmed by the High Court vide the impugned judgment, contended that the deceased had sustained injuries which as the post-mortem examination revealed, the pellet had broken into splinters which had spread and materially damaged the brain and obviously the deceased must have fallen unconscious. He further contended that this fact has been confirmed by the doctor when he stated that the deceased had been brought to the hospital in an unconscious state and that despite this fact, the police fabricated the F. I. R. In the form of a dying declaration; that, the presence of two eye- witnesses namely Ghulam Muhammad, P. W. 15 and Abdur Rahman, P. W. 16 at the scene of crime at the time of incident, is highly doubtful and, therefore, no reliance could be placed on their statement; that even the learned High Court Judges have held that Ghulam Muhammad was highly interested in the cause of the deceased and that Abdur Rahman, P. W. 16 had enmity with Sherbaz and they also took notice of the fact that both Ghulam Muhammad, P. W. 15 and Abdur Rahman, P. W. 16 in their statements before the police did not refer to the fact that the deceased was in his senses when he was removed from the spot ; that while looking at the testimony of Ghulam Muhammad, P. W. 15 with suspicion the learned Judges have placed implicit reliance on the statement of his son Saifullah regarding the recovery of crime empty P. 9 from the scene of occurrence. Saifullah's testimony was tainted as that of his father and, therefore, their version that the recovery of empty cartridge had been fabricated during the investigation or that it had been fired from a gun supplied by the witnesses to the police, is more probable and the learned Judges have wrongly held that the recovery of the crime empty P. 9 of the gun fire from the petitioner stood adequately proved; that similarly the recovery of the gun from the convict/petitioner Dost Muhammad is highly doubtful and the police did not bother to make some respectables of the locality as witnesses to the recovery, has also a great bearing on this question. Moreover, the learned counsel contended, the house from which the gun was recovered, was not inhabited by the petitioner alone. He lived there jointly with his father and the family; that the delivery of the gun to the ballistic expert after the expiry of more than 7 months itself makes the recovery of the gun extremely doubtful. The gun was sent to the expert on 12-10-1976 yet because of undisclosed technical objections, the same was returned to the police station.
13. On going through the record we, however, find that the fatal shot had been attributed to the petitioner Dost Muhammad by the eye-witnesse as well as by the deceased in his dying declaration. Regarding the correctness of the dying declaration we are not convinced with the argument that the deceased could not have lived for some time to make a statement-the one which is relied upon by the prosecution. There are cases where more serious injuries of the nature damaging or piercing the heart and other vital organs, yet the victims have lived for some time and made statements mentioning the cause of their death or any of the circumstances of the transaction which resulted in their death. The doctor had been questioned on this point and h Stated that: "It is correct that Injury No, 1 had badly lacerated the brain of the deceased because the main pellet had broken into splinters, which had spread and had materially damaged the brain. The observation from Moodi's book quoted above, would not apply in case of the injuries caused to the deceased in this case......"
But this would not be enough reason for casting doubt on the dying declaration recorded by the Police Officer as the doctor in the last paragraph of his examination-in-chief had agreed with the proposition given in Moodi's medical jurisprudence on page 242 that some time after receiving mortal injuries involving the vital organs, e. g. Brain, heart or abdomen, visera, the victim was able to speak or mention or write down the name of his assailant.
Further, we find that Sultan Sikandar, Head Constable P. W. 17 the Investigating Officer recorded the dying declaration at the instance of the deceased who thumb-impressed the same after hearing it when it was read over to him. The witness stated "the deceased remained in his senses till the completion of his statement" In cross-examination the witness stated: "the aforementioned Fateh Sher seemed to be in slight trouble at the time he was brought to the police station but he was, however, fit enough to make a statement. His injuries were bleeding. The persons accompanying Fateh Sher were sent out of the police station when I recorded his statement. Fateh Sher aforementioned did not pause or halt while making his statement. No water or milk was given to him during the recording of his statement. His eyes were normal. It is incorrect to suggest that I obtained his thumb-impression on his statement Exh. P.
0. While he was unconscious. It is also incorrect that I fabricated the statement contained in Exh. P.
0. In collusion with the relations of the deceased."
' Thus, in our opinion there is no reason to disbelieve the statement of the Investigating Officer and the defence has not been able to discredit him with any ulterior motive to fabricate the document in question.
(5) As regards the recovery of empty P. 9, we have the statement of Raja Mahrban Khan, A. S. I. Who recovered the same near the place of occurrence where Dost Muhammad was stated to be present at the time of occurrence, and had fired at the deceased. This crime empty was taken into possession on 8-3-1976 vide Memo. Exh. P. C. And the accused/petitioner was arrested on 15-4- 1976. While in police custody the accused/petitioner led to the recovery of an unlicensed gun P. 12 vide Memo. Exh. P. N. On 20-4-1976 (witnessed by Ayub Khan, P. W. 13 and Gul Jahan) which he had concealed in a quilt lying on the bed in the residential kotha of his house. This gun matched with the crime empty P. 9 as per the statement of the ballistic expert vide report Exh. P. V.
(6) Dealing with the case of accused/petitioner Dost Muhammad the learned High Court Judges have taken into consideration the circumstances of the death of the deceased and in paragraph 16 of the impugned judgment they have observed as follows: "In these circumstances, the dispute between Sultan, appellant on one hand, and Fateh Sher deceased, on the other, regarding the vacant plot of house, which led to civil suit between them, stands proved. This, however, does not mean that all the appellants were motivated to commit the crime in instance, as is imputed to them. At best Sultan, appellant who had filed the civil suit against the deceased and his son Dost Muhammad, appellant can be said to have had any motive against the deceased for committing an offence so grave at the murder of Fateh Sher deceased.
Sherbaz, Muhammad 1qbal and Dad, appellants, though closely related to Sultan and Dost Muhammad, appellants, could not have gone to the extent of associating themselves so boldly in participating with Sultan and Dad appellants in the murder of Fateh Sher deceased. We, therefore, hold that motive stands proved only as against Sultan and Dost Muhammad, appellants."
17. In the light of above discussion we hold that the accused/petitionerip has been found guilty after proper appraisal of the evidence by the learned High Court Judges, and there being no mitigating circumstance the accused/ petitioner deserves the normal penalty of death under the law. Petition isl dismissed.