1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the Lahore High Court in Criminal Appeal No. 484 of 1969 (Murder reference No.142 of 1969) dated the 20th October 1970. By this judgment, a division Bench of the Lahore High Court dismissed the appeal filed by the appellant and confirmed his death sentence.
2. The appellant was tried by the Additional Sessions Judge, Sahiwal, for the murder of Muhammad Sharif Mirasi and was convicted and sentenced to death under section 302, P. P. C. He challenged this order in Criminal Appeal No. 484 of 1969, which, as already stated, was dismissed by the Lahore High Court on the 20th October 1970. The appellant has challenged this judgment in this appeal before us.
3. The prosecution case is that the appellant and the deceased were neighbours living in a locality known as Karbala Road in Sahiwal. It is alleged that the appellant used to tease the grown--up sister of the deceased which led to the quarrel between the parties. The appellant gave beating to the deceased on two occasions. On the day of occurrence in the morning, the appellant and the deceased had altercated and exchanged abuses to each other because the appellant had objected to the visit to the house of the deceased, of his two friends, namely, Nazir Ahmad and Mohammad Rafiq P. Ws. On the same day, in the evening, the deceased along with the above- named P. Ws., went to the Iris Cinema for seeing the picture. The show was to start at 6-30 p.m. The deceased and his two friends were standing in front of the booking window. The appellant reached on the spot and gave a push to the deceased with his shoulders. The deceased suspected trouble by the appellant and left the cinema along with his companions. When they were at a short distance from the cinema, the appellant came running and attacked and inflicted blows to him with a knife. The incident is alleged to have been witnessed by Nazir Ahmad and Mohammad Rafiq and also by Mohammad A.I and Mohammad Anwar P. Ws.
4. Sher Shah, A. S. I. P. W. 14, who was on patrol duty reached the place of occurrence and recorded Exh. P. F., the statement of the deceased after a few minutes of the occurrence. On the basis of this statement, a formal F. I. R., Exh. P. F./l, was recorded by Muhammad Rarnzan P. W. 7 at 7-15 p.m. An the same evening at Police Station, `B' Division, Sahiwal, which is one mile from the spot.
5. The deceased was carried in an injured condition to the hospital where Dr. Mohammad Irshad P. W.
6. 2, examined him for his injuries. The deceased was found to have received five injuries on various parts on his body. One of these was on the abdomen which was dangerous and rest were simple.
7. All the injuries were caused by a sharp-edged weapon within a duration of about two hours. The deceased died at 12-15 a.m., the same night. The appellant was arrested on the 27th December 1968, from the District Court, Sahiwal. On the 28th December 1968, at the instance of the appellant, Slier Shah, A. S. 1. Recovered a blood--stained knife, Exh. P. 4, from under a fake Chambaili plant. The knife was found stained with human blood by the Serologist.
8. At the trial, the prosecution case was supported by the ocular testimony of four witnesses, namely, Nazir Ahmad P. W. 3, Muhammad Anwar P. W. 13, the report, Exh. P. F., which was relied on as a dying declaration, medical evidence and the evidence with respect to the motive.
9. The appellant denied the charge and said that the case has been brought against him due to enmity of the prosecution witnesses including the Investigating Officer. Some evidence was also led in defence in order to discredit Muhammad Rafiq P. W. 4 by a previous statement, Exh. C. A., alleged to have been made by him on the 1st February 1969, before Ch. Ghulam Ahmad, Magistrate, who appeared as D. W.
1. In this statement, the witness had said that he had not seen the occurrence.
10. The learned trial Court, by judgment dated the 12th June 1969, convicted the appellant for an offence under section 302, P. P. C. And sentenced him to death. The learned Judge excluded the evidence of Muhammad A.I and Muhammad Anwar P. Ws. Because they appeared to be stock witnesses of the police. As the recovery of knife was also proved by the same two witnesses, this circumstance was also excluded from consideration. The conviction was based on the other evidence, namely, the ocular testimony of Nazir Ahmad and Muhammad Rafiq P. Ws., dying declaration, medical evidence and the evidence .Relating to the motive.
11. This judgment was challenged in appeal which was dismissed by the Lahore High Court on the 20th October 1970. The learned Judges of the High Court excluded the evidence of Muhammad Rafiq but upheld the conviction of the appellant on the evidence of Nazir Ahmad and the dying declaration, Exh. P. F.
12. Special leave was granted in this case to consider the question whether the conviction of the appellant is based on principles consistent with the safe dispensation of criminal justice.
13. Sh. Ghias Muhammad, learned counsel for the appellant, has contended that the conviction of the appellant is based on the alleged dying declaration of the deceased and on the solitary statement of P. W. 2 Nazir Ahmad. According to the learned counsel, both these pieces of evidence are not reliable and they should not be accepted as good evidence against the conviction of the appellant. The learned counsel pointed out that Sher Shah, A. S. I., has not investigated the case in a straightforward and honest manner. He has sought the conviction of the appellant on the basis of the statement of prosecution witnesses who were stock police witnesses. He further contended that there is a strong doubt that the F. I. R., namely, the dying declaration, was not recorded at 6-30 p.m. But was recorded much later. In this connection he referred to the circumstance that the substance of the prosecution case was not mentioned in the F. I. R., Exh. P. F./1, which was recorded at the Police Station. This contention of the learned counsel has not impressed me. It, however, appears that the investigation of the Police Officer was. Not above board. He has mentioned in the dying declaration the names of two eye-witnesses, namely, Muhammad A.I and Muhammad Anwar who were stock police witnesses.
14. These witnesses have been disbelieved by the Courts below and, therefore, the dying declaration is defective for this reason. In these circumstances much reliance cannot be placed on the dying declaration.
15. The evidence of Nazir Ahmad P. W. 2 is also of not a reliable person. He is a friend of the deceased.
16. He also admitted in cross-examination that he was not on good terms with the appellant. In these circumstances much reliance cannot be placed on his evidence unless it is corroborated by any independent evidence. '
17. Mr. M. A. Bajwa, learned counsel for the State, has contend--ed that the statement of this witness is corroborated by the dying declaration, Exh. P. F. Unfortunately, the dying declara--petition is tainted evidence and one tainted evidence cannot be corroborated by the other tainted evidence.
18. I would, therefore, give the appellant benefit of doubt and accept his appeal. He is directed to be released immediately if he is not anted in any other case.
19. HAMOODUR RAHMAN, C. J.-I agree.
20. SAJJAD AHMED, J.-I agree.
21. SALAHUDDIN AHMED, J.-I agree.