ATAULLAH SAJJAD, J.--This appeal is directed against the order of Khan Mahmood Khan, Additional Sessions Judge, Sargodha, dated 16th of February 1968, by which he convicted the seven appellants as under :-
(1) One year's R. I. Each under section 148, P. P. C.
(2) two months' R. I. Each under section 447/149, P. P. C.
(3) six months' R. I. Each under section 323/149, P. P. C.
(4) one year's R. I. Each under section 324/149, P. P. C.
(5) transportation for life each under section 302/149 of the Pakistan Penal Code.
2. Out of the seven appellants, Ghulam Jilani, Sher Muhammad, Ghaus Muhammad and Khizar Hayat are brothers inter se. Sardar Khan appellant is their khalu. Ismail, son of Dost Muhammad is maternal-uncle's son of Sardar Khan and Nazar Muhammad appellant is a brother's son of Ismail appellant.
3. On 23rd of March 1966, at about degarwela, in the area of mauza Namewali, police station Khushab in the District Sargodha, the appellants formed an unlawful assembly and in order to achieve the common object of that assembly injured Fateh Khan deceased in such a manner that he died in the Khushab civil hospital on 1st of April 1966. They caused blunt weapon injuries to Riaz Husain (P. W. 8), Ghulam Akbar (P. W. 9) and Chanan (P. W. 10). There was also an incised injury on the right arm of Chanan.
4. The prosecution story, as it is revealed by the evidence led at the trial, is that a piece of land which was in front of the house of Fateh Khan deceased was jointly owned by the deceased and Ghulam Jilani appellant and his three brothers. The deceased used to tether his cattle in the disputed land and was in exclusive possession thereof. On the day of occurrence, Ghulam Jilani and his three brothers named above came into the disputed spot and pulled out the wooden pegs by which the cattle used to be tethered. Ghulam Jilani, Sher Muhammad and Ghaus Muhammad were armed with hatchets while Khizar Hayat was armed with a stick. When Fateh Muhammad deceased asked the above four persons to desist from taking out the pegs, Ghulam Jilani raised a shout and warned Fateh Muhammad that he should get away otherwise he would be killed.
Simultaneously with this shout, Ghulam Jilani gave a hatchet blow from the blunt side to the deceased which fell on his head. In the meanwhile, Sardar Khan, Nazar Muhammad and Ismail appellants also came to the spot armed with dangs. Sardar Khan shouted that Fateh Muhammad should be done to death. On this Ghulam Muhammad and Sher Muhammad gave blows to the deceased with the blunt side of the hatchet. Fateh Muhammad deceased was staggering when Sardar Khan gave another blow to the deceased who fell down. Riaz Husain (P. W. 8), a nephew of the deceased, Chanan (P. W. 10) who is the brother of the wife of the deceased and is married to the sister of the deceased and Ghulam Akbar, son of Chanan (P. W. 9) tried to intervene but were given injuries by the assailants. Ghulam Jilani gave Chanan a blow with the sharp side of the hatchet.
5. The deceased was taken to his house on a charpoy and from there to the police station Khushab. He lodged the F. I. R. Exh. P. D. At 7 p.m. On the same day. It was recorded by S. I. Sarfraz Khan (P. W. 14). It was read out to the deceased who thumb marked it in token of its correctness.
Short while after this, Sardar Khan appellant appeared in the police station with the gun Exh. P. 4 of the deceased. This gun was taken into possession by the police. The Sub-Inspector recorded a supplementary statement of the deceased wherein he stated that when he was being injured his son Muhammad A.I (P. W. 11) aged about 10/12 years had brought out the gun which was snatched by Sardar Khan appellant. Sardar Khan appellant also produced before the Sub-Inspector the medical certificate of Sher Muhammad appellant which showed that the latter had received two injuries.
6. The deceased was thereafter taken to the hospital where he remained in a state of complete unconsciousness for about ten days and expired on 1st of April 1966.
7. The Sub-Inspector reached the spot at about 10 p.m. He recovered from the spot in the light of the lantern three wooden pegs Exh. P. 2/1-3. He also recovered a broken piece of an earthen pot (thikri) Exh. P. 3, which was stained with a few drops of blood, from a street at a distance of 32 karams from the spot. These articles were taken into possession vide memo. Exh. P. B. The thikri was sealed into a parcel and was sent for chemical examination. According to the opinion of the Serologist Exh. P. Y. The blood on this thikri was found to be of human origin.
8. Ghulam Jilani, Khizar Hayat, Ghaus Muhammad and Sher Muhammad appellants were arrested on 24th of March 1966. The other three appellants, namely, Ismail, Sardar Khan and Nazar Muhammad were arrested on 26th of March 1966. The Sub-Inspector also took into possession on 5th of April 1967, licence Exh. P. 1 of gun Exh. P. 4 belonging to Fateh Khan deceased vide memo. Exh.
P. A.
9. The medical evidence gives the following account of the injuries on the person of the deceased:
(1) A lacerated wound 3--" x --" x scalp deep at the vertex antero posterior in direction 5--" above the left ear.
(2) A lacerated wound 1" x 1/6" scalp deep antero posterior in direction 2" right to injury No. 1.
(3) There was swelling and blackening of the right upper part of right upper arm 5" x 4--". There was an abrasion 1 1/3" x --" in the centre of swelling opposite right outer surface of deltoid muscle.
There was also fracture of the upper end of the right humerus. The upper part of the right upper arm was swollen.
(4) There was an abrasion 1/3" x 1/3" along the lower part of the left side of verteberal column.
After the death of the deceased, it was found on the dissection of the scalp that there was black clotted blood underneath. There was congestion of the scalp opposite to the parietal bones. There was crushed depressed fracture of left parietal bone which extended to the left side of the occipital bone posteriorly and to the left side of the frontal bone anteriorly. There was also black clotted blood in the extra dural space opposite to the fractured bones, left side. Dura matter was also con- -gested opposite the fracture of skull bones. Clotted blood was present on the surface of the brain both opposite to the left parietal bone and opposite to the right parietal bone. Left lobe of the brain was also congested.
On opening the abdomen, all the organs were found healthy. Death, according to the opinion of the doctor was due to coma and compression of the brain caused by injury No. 1, which was grievous and resulted in the fracture of the skull bones and intra cranial haemorrhage and compression of the brain. Injury No. 3 was also grievous. The probable time between injuries and death was within ten days and that between death and post-mortem was within two hours. The injuries, according to the doctor, could have been caused by the blunt side of a hatchet or by dangs.
10. The police sent the three injured P. Ws. Namely. Ghulam Akbar, Riaz Husain and Chanan Khan, to the hospital for examination at 8-30 p.m. On the 23rd of March 1966. The doctor found the following injuries on their persons:- Ghulam Akbar P. y.
(1) An abrasion 1/3" x 1/3" at the middle of the right mandible at under surface.
(2) A contusion mark 51" x 1/3" at the outer surface of the left chest.
(3) A contusion mark I J" x 1/3' half inch posterior to injury No. 2.
(4) There was tenderness and swelling in an area of 1" at the dorsum of left foot.
All the injuries were simple and had been caused within six hours, by a blunt weapon by enemy hands.
(1) A lacerated wound 1--" x 1/3" x bone deep at the frontal bone --" above the hair line oblique in direction.
(2) A lacerated wound 1--" x 1/3" into bone deep at the left parietal bone oblique in direction and was 4" above the left ear.
(3) An abrasion --" x 1/6" at the back 9f right forearm.
(4) An abrasion 1/8" x 1/8" at the outer surface of the left index finger.
(5) An abrasion 1--" x --" at the back of the left forearm in the middle.
All the injuries were simple caused by blunt weapons by enemy hands. The duration of these injuries was within six hours.
Chanan Khan, P. W.
(1) An incised wound 2--" x 1/3" x 1/3" at the outer surface of the right forearm --" above right wrist joint.
(2) Complaint of pain in the left buttock.
Both the injuries were simple. Injury No.1 was caused by a sharp-edged weapon by enemy hands.
11. The same doctor had earlier examined Sher Muhammad alias Shera, son of Dost Muhammad appellant at the instance of Ghulam Jilani appellant and had found the following injuries on his person:-
(1) A lacerated wound 1--" x --"x bone deep on the left side of the forearm half inch above the left eye-brew.
(2) An abrasion 3" x --" at the back of the left chest 2--" below the left blade of the scapula.
Both the injuries were simple and caused by blunt weapon by enemy hands.
12. The appellants, except Khizar Hayat and Sher Muhammad, denied the allegation of the prosecution and stated that they had been involved on account of enmity. Khizar Hayat and Sher Muhammad, however, stated that they were attacked by Riaz Husain and Ghulam Akbar P. Ws.
When they were coming to their house with their cattle. As a result of this assault, Shera appellant was injured and in the meanwhile Chanan Khan P. W. Came armed with a lathi to reinforce in the attack against the appellants but was injured in his attempt to do so. The above two appellants further stated that thereafter Fateh Khan deceased brought his gun and fired a shot at them which missed hitting them, and that in order to save themselves the two appellants inflicted injuries on him. It was denied by the appellants that Sardar Khan had produced the gun at the police station.
Sher Muhammad claimed that he had picked up the gun from the place of occurrence and had produced it before the police.
13. At the trial, apart from the injured P. Ws., Sher Khan (P. W. 13) appeared as an eye-witness.
Muhammad A.I, the son of the deceased appeared as P. W. 11 and deposed that while his father was being injured, he brought out the gun from his house which was hanging on a peg but was deprived of the same by Sardar Khan appellant.
14. It may be mentioned here that the parties are related inter se. The grandfather of Sher Khan (P.
W. 13) and the great-grandfather of the deceased and Ghulam Jilani appellant and his three brothers, were brothers. The two brothers of Sardar Khan, namely, Haq Nawaz and Rab Nawaz are married to the daughters of the sister of the wife of Sher Khan (P. W. 13). A cousin of Chanan Khan (P. W. 10), namely, Mst. Tajan is the wife of Wali, a son of the sister of Sardar Khan appellant. The grandmother of Sardar Khan appellant and that of Chanan Khan were sisters.
15. It, however, appears from the record that the relation--ship between the parties had been embittered on account of a number of incidents. The deceased Fateh Khan had twice fought elections to the Basic Democracy against Sardar Khan appellant. About seven or eight months before the occurrence, Sardar Khan and Ghulam Jilani appellants along with some of their relatives were prosecuted under section 307, P. P. C. For causing injuries to Jaffar, a son of Chanan Khan (P. W. 10). The case of the prosecution is that Fateh Khan deceased was zealously following this case on behalf of the prosecution and this provided a motive for the appellants to launch the attack as a result of which the former lost his life.
Earlier than that, we find some incidents which indicate the bitterness between the parties. Wali Muhammad and Karam A.I who are the sister's son of Sardar Khan appellant, gave a beating to Chanan Khan (P. W. 10) and a case was registered. Again, Sardar - Khan appellant and others had trespassed into the land of Chanan P. W. On which Baqir, a son of Chanan filed a complaint which was dismissed for non-prosecution. Sardar Khan appellant had forcibly taken possession of five to six marlas of land belonging to Chanan who as a result of this act of aggression changed the site of his residence elsewhere. Chanan and some others on one side and Sardar Khan and others on the other, were bound down for keeping peace. The father of Chanan had filed a suit against Sardar Khan for cancellation of the sale of land made to him by the former's sister. It was a suit for declaration and after the death of his father, Chanan filed a suit for possession with respect to the same land. Sher Khan (P. W. 13) also appears to have grouse against Sardar Khan because the latter received Rs. 640 in respect of a mortgage but did not effect the mortgage nor did he return the money. Sher Khan also admitted that he and the deceased had been bound down for keeping peace along with some others against Sardar Khan. We also find that Sardar Khan appellant after the present incident, filed a civil suit against the sons of Sher Khan.
It is, therefore, clear that in spite of the relationship between the parties, there was no love lost between them.
16. The learned Additional Sessions Judge convicted the appellants on the following grounds:-
(a) that the F. I. R. (Exh. P. D.) which was used by the police as a dying declaration after the death of the deceased was a document which spoke out the truth and was corro. Borated by the three injured P. Ws.
(b) that the prosecution witnesses being related to the appellants, it was unlikely that they would falsely involve their kith and kins,
(c) that the rule that corroboration of inimical testimony is necessary is not applicable to the present case and
(d) that in any case the F. I. R. Was lodged with promptitude and the number and nature of injuries lent corroboration to the prosecution story.
17. It was vehemently argued before us by Chaudhry Nazir Ahmad Khan, the learned counsel for the appellants that the premises on which the learned Additional Sessions Judge has proceeded is legally wrong. In addition, it was contended that the F. I. R. Exh. P. D., which was being used as a dying declaration, was a forged document because the deceased must have lost consciousness after receiving the injuries which were found on his person. It was further averred that the prosecution witnesses being inimical, the learned Additional Sessions Judge should have sought corroboration of this inimical testimony in respect of each accused. The learned counsel also contended that the prosecution had not come with clean hands and that there had been interpolations in the F. I. R. Which cast doubt on the entire prosecution story.
18. In support of the contention that the deceased must have lost consciousness after receiving the injuries, the learned counsel referred to Taylor's Principles and Practice of Medical Jurisprudence, Val. I, 11th Edition (1956) page 303, Mody's Text Book of Medical Jurisprudence and roxicoiogy, 14th Edition (1963) pages 271 and 272 and "A Synopsis of Medical Juris--prudence and Toxicology" by Dr. Siddiq Husain, 1967 Edition, page 75, in order to show that concussion of brain is also known as stunning and is a state of unconsciousness or impaired consciousness suddenly produced by the application of force on the head. According to the medical opinion expressed in these books, a severe injury on the head would cause the widespread paralysis of the functions of the brain followed by loss of consciousness.
19. We find from the medical evidence in this case that there is no note by the doctor that the deceased when brought to the hospital in an injured condition, was unconscious. All that is mentioned in the doctor's note is that the patient was quite weak and was vomiting. No question was put to the doctor with regard to the state of the consciousness of the deceased when he was first brought to the hospital. Nor was any question in this regard put to the Sub-Inspector who recorded the F. I. R. Allah Ditta chaukidar (P. W. 7) claimed that the dying declaration was dictated by the deceased in his presence. No suggestion was put to him that the deceased was not conscious when he is said to have made a statement. We, therefore, do not find it possible to hold on the basis of the medical opinions expressed in general terms that the deceased was unconscious at the time when he is said to have dictated the F. I. R. Exh. P. D. And that this document is a fabricated one. We also find in Mody's Book at page 272 referred to above that recovery in such cases follows with the setting in of nausea or vomiting. We also find at page 303 of Taylor's Book that a shock may be sufficient to inhibit completely the vital processes, and death may result but a patient may revive after a few minutes with symptoms of headache, giddiness, weakness and vomiting. The deceased is stated to have been vomiting when he was brought to the hospital and it may be presumed in view of the medical evidence and the above opinions expressed by experts that he was under a short spell of recovery when he made a statement before the Sub-Inspector and when he was brought to the hospital. The doctor, of course, stated during his evidence that the patient remained unconscious for ten days during his stay in the hospital but from this general statement it cannot be inferred that the patient was necessarily unconscious when he was brought to the Police station or the hospital.
20. We also fail to understand as to what was the prosecu--petition to gain by fabricating the F. I. R.
In the name of the deceased. There were three injured P. Ws. And anyone of them could be asked to make the same statement which was made in Exh. P. D. We, therefore, find ourselves unable to agree with the learned counsel that the deceased was unconscious at the time when he is said to have made the statement Exh. P. D.
21. It was further pointed out with reference to the cross---examination of the Sub-Inspector that there had been some overwriting and interpolations in the F. I. R. By which an attempt was made to inculpate Sardar Khan appellant also as one of the persons who bad given blows to the deceased.
To illustrate his point, the learned counsel referred us to the carbon copy of the F. I. R. Exh. P. D. And its more legible copy Exh. P. D-1 which was made at the instance of the trial Court. In both these copies the exact stage at which Sardar Khan. Nazar Muhammad and Ismail arrived is not mentioned. It is, however, stated that after the deceased had received injuries at the hands of Ghulam Jilani, Ghaus Muhammad and Sher Muhammad and while the P. Ws. Were advancing to rescue the deceased from the hands of the assailants, Sardar Khan gave a lathi blow to Riaz Hussain P. W. And Nazar Muhammad gave a lathi blow to Ghulam Akbar P. W. We would like to reproduce the particular lines from Exh. P. D-1:- It appears, therefore, that an interpolation was made in the F. I. R. And the clear intention was to involve Sardar Khan as one of the actual assailants of the deceased. In the F.I.R. Sardar Khan has not been attributed the infliction of any injury to the deceased. On the other hand, the reading of the F. I. R. Gives an impression that Sardar Khan, Nazar Muhammad and Ismail came after the deceased had received the injuries. There is therefore a clear contradiction in the F. I. R. And the evidence led at the trial in this regard.
22. Chanan P. W. In his statement before the police Exh. D. C. Did not state that Sardar Khan had given any injury to the deceased. On the other hand, he stated that he, Ghulam Akbar and Fateh Khan had already been injured when Sardara, Ismail and Nazra came to the spot. He was duly confronted with this important contradiction in his statement. We, there--fore, find that according to the prosecution story as it was set out in the F. I. R., Sardara had not inflicted any injury to the deceased and that he and his two companions, namely, Ismail and Nazra arrived when Fateh Khan had already received injuries.
23. We have seen above that the relations between the complainant party and the accused were extremely unhappy. There was the bitterness left by two elections, there were proceedings for keeping peace and apart from other disputes there was a criminal case going on at the relevant time in which Ghulam Jilani and Sardar Khan, appellants, were the accused persons along with others. The learned Additional Sessions Judge was very much impressed by the relationship which the eye-witnesses professed to have with the appellants but he completely ignored the fact that the background of the rela--tionship of the, parties had been completely overshadowed by incidents of mutual enmity and bickering. We have detailed above the instances which sowed the seeds of discard between the parties and on the facts of the case, we have to hold that the eye- witnesses on whose testimony the - conviction of the appellants is based, are interested. The learned Additional Sessions Judge observed in his judgment that the rule that the Court should seek corroboration of the testimony of interested.
It appears from the cross-examination of the Sub-Inspector that he denied that he had overwritten the word " MUJHE " in the original. The original F. I. R. Unfortunately is not before us. We were, however, able to compare the above lines with another copy of the F. I. R. Which is on the police file.
The contention that the word " MUJHE " was overwritten as " MUJH " and the word "------" was converted into " --------- " appears to be correct. The lines here read as follows:- It appears, therefore, that an interpolation was made in the F. I. R. And the clear intention was to involve Sardar Khan as one of the actual assailants of the deceased. In the F. I. R. Sardar Khan has not been attributed the infliction of any injury to the deceased. On the other hand, the reading of the F. I. R. Gives an impression that Sardar Khan, Nazar Muhammad and Ismail came after the deceased had received the injuries. There is therefore a clear contradiction in the F. I. R. And the evidence led at the trial in this regard.
22. Chanan P. W. In his statement before the police A Exh. D. C. Did not state that Sardar Khan had given any injury to the deceased. On the other hand, he stated that he, Ghulam Akbar and Fateh Khan had already been injured when Sardara, Ismail and Nazra came to the spot. He was duly confronted with this important contradiction in his statement. We, there--fore, find that according to the prosecution story as it was set out in the F. I. R., Sardara had not inflicted any injury to the deceased and that he and his two companions, namely, Ismail and Nazra arrived when Fateh Khan had already received injuries.
23. We have seen above that the relations between the complainant party and the accused were extremely unhappy. There was the bitterness left by two elections, there were pro--ceedings for keeping peace and apart from other disputes there was a criminal case going on at the relevant time in which Ghulam Jilani and Sardar Khan, appellants, were the accused persons along with others. The learned Additional Sessions Judge was very much impressed by the relationship which the eye-witnesses professed to have with the appellants but he completely ignored the fact that the background of the rela--tionship of the parties had been completely overshadowed by incidents of mutual enmity and bickering. We have detailed above the instances which sowed the seeds of discard between the parties and on the facts of the case, we have to hold that the eye- witnesses on whose testimony the conviction of the appellants is based, are interested. The learned Additional Sessions Judge observed in his judgment that the rule that the Court should seek corroboration of the testimony of interested witnesses is not of universal application and that in a given case if the story has the ring of truth, the conviction can be based on the uncorroborated testimony of the interested witnesses. We are afraid, the learned Additional Sessions Judge has stated the rule too widely. Of course, it was observed by the Supreme Court in Niaz v. The State (PLD 1960 SC 387) that in cases where interested witnesses would charge one person only with the commission of the offence or where the number of persons whom they name, does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits; their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration. The above judgment was further explained in Nazir and others v. The State (PLD 1962 SC 269) and it was observed as under:- "In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty, the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction."
PLD 1963 SC 25) it was held that where there was a motive to include as many persons as possible and eye-witnesses are interested, exceptionally strong corroboration is necessary which is almost by itself sufficient to establish guilt. In Hamida Bano v. Ashiq Hussain (PLD 1963 SC 109) the Supreme Court visualised the difficulties which the prosecution has to face for non-availability of independent witnesses and emphasised in the following words the necessity of scrutinising the testimony of interested witnesses "It is true that in the average murder case from the rural areas, a major complication in the evaluation of the evidence is generally introduced by the difficulty of obtaining persons to testify against the accused other than those who are in ties of relationship with the complainant or have a personal animus against the accused. The Courts whose duty it is to adopt careful principles for the safe dispensation of "Justice act with perfect propriety when they scrutinize the evidence of persons falling in this category with care, and require corro--boration from independent sources before they accept such evidence as sufficient to establish, beyond reasonable doubt, that the accused person is guilty of a capital offence."
24. The rule firmly laid down by the Supreme Court to the effect that "corroboration is necessary before a conviction is based on the testimony of interested witnesses" cannot there--fore, be diluted merely because the trial Court feels that there is a ring of truth in the story told by the prosecution witnesses. If it is left to the feeling of each trial Court to deride as to whether or not in a case where interested witnesses are appearing, there is a ring or truth in the prosecution story, the result would be disastrous. There would then be the danger of a case being decided on the basis of the subjective satisfaction of the trial Court and not on the basis of the probabilities of a case appearing from the record. The learned trial Judge held that there were certainly more than two persons who attacked the deceased but what is there to convince us that all the seven appellants participated and not three or four or five of them. There were fourteen visible injuries in all on the persons of the deceased and the injured P. Ws. Out of them, there was one abrasion on the person of the deceased, one on the person of Ghulam Akbar and three abrasions on the person of Riaz Husain. The abrasions may safely be said to have been caused during the struggle. Even if they were attributed to some blows, can it be positively said that all the injuries could not be caused by less than seven persons.
25. The Supreme Court has given an illustration in the case of Niaz v. The State referred to above, of a case where corroboration of interested evidence may not be necessary. There may be more instances but we are not concerned for the time being with such instances. Here, we are dealing with the inimical, witnesses who have involved seven persons in the commission of the offence and we have already found that they exaggerated matters so far as Sardar Khan is concerned. There-- fore, the application of the rule of caution which says that the testimony of interested witnesses must be corrborated, is all the more called for in this case.
26. We are also of the opinion that the learned Additional Sessions Judge was not justified in placing reliance on the dying declaration Exh. P. D. Without considering the background of enmity that existed between the deceased and the accused party. He observed that the dying declaration was corroborated by the testimony of the three injured witnesses. The learned Judge, however, failed to appreciate that the multiplicity of interested testimony has not the effect of converting it into an unalloyed truth. He was impressed by the fact that the deceased was expecting death and was in a precarious condition and it could not, therefore, be said that "he would speak a lie or be tutored by some one else to falsely implicate the accused persons or dictate a detailed story out of his own imagination". It is true that in some of the judgments, the Courts have observed that those who are in pain do not speak in vain and usually speak the truth (See Shahbaz and another v. The Crown (PLD 1953 Lah. 566)). But these observations apply to the peculiar facts of these cases. The question whether an injured person who has a feeling that he is crossing the frontiers of life into the world hereafter is making a particular statement on account of fear of God or is motivated by malice for his enemies who may actually be innocent, relates essentially to his own inner feelings and can be determined by reference to the evidence on the record and the circumstances appearing in the case by a process of reasoning peculiar to the Courts of law. A dying declaration is not a piece of evidence at par with that given in Court where cross-examination can bring out the weak points of the witness and expose the falsity of his statement. The consideration for which some sanctity is attached to the dying, declaration is that a man while he is preparing to face his Maker will not tell a lie and falsely involve anyone. This however-, depends upon the sense of accountability of a person to his maker and varies from man to man. There have been a number of cases in which dying declarations were found to be entirely false Of course, there is no rule of law which says that no conviction can be based on a dying declaration without corroboration but a rule of prudence has been evolved by the Courts for safe dispensation of justice that ordinarily when a number of persons have been involved and there is a background of enmity between the persons making the dying declaration and the accused, the rule regarding seeking of corroboration should be invoked. It was observed in Mian Khan v. The Crown (PLD 1954 Lah. 646) that the weight to be attached to a statement of a dead person depends on the circumstances of each case and no hard and fast rule of general application can be laid down. Again, it was held in Khurshid Hussain Salihon Shah and others v. Emperor (AIR 1941 Lah. 368) that where a large number of persons are implicated as accused, there should be no conviction in the absence of corroboration. There is no denying that when a person is inimically disposed to a particular party, he is tempted to name a large number of persons. It was held in Bakshish Singh and others v.
Emperor (AIR 1925 Lah. 549) that the inhabi--tants of the Punjab often in a dying declaration not only accused the actual offender but also include the names of other enemies and it will not be, therefore, safe to base a conviction on the uncorroborated dying declaration of a deceased person. We cannot therefore place the dying declaration at a higher pedestal than the testimony of the interested witnesses in this case.
27. We agree with the learned Additional Sessions Judge that the incident took place because of a dispute over the piece of the land where the deceased used to tether his cattle. The appellants have not denied that they held this land jointly nor have they seriously asserted that they were in exclusive possession thereof. The version given by Sher Muhammad regarding the origin of the incident does not sound convincing and we will presently give over reasons for this opinion. We, therefore, hold that the origin of the fight as disclosed by the prosecution is correct.
28. We have seen that Ghulam Jilani and his three brothers are stated to be the main assailants.
There was motive with the complainant side to include all these persons because Ghulam Jilani had given a beating to Jaffar son of Chanan (P. W. 10) and was being prosecuted. We, therefore, cannot maintain the conviction of the appellants unless there is corroboration forthcoming in- respect of each one of them.
29. Ghulam Jilani is stated to have opened the attack and he is said to have been armed with a hatchet. According to the prosecution, the incised wound on the person of Chanan has attributed to Ghulam Jilani. The presence of this injury provides corroboration to the statement of the P. Ws.
That Ghulam Jilani was armed with a hatchet and he inflicted an injury with its sharp side on Chanan P. W. We also believe that he bad the primary motive to launch an attack on the deceased.
Sher Muhammad admitted his participation in the incident and there are two injuries on his person.
His plea was that he acted in self-defence along with his co-appellant Khizar Hayat. This plea has been found to be false by the learned Additional Sessions Judge for reasons with which we agree. It was not possible for two persons to injure the three P. Ws. And the deceased and emerge out with two simple injuries only on one of them. In any case, there is no explanation whatsoever for the incised injury on the person of Chanan. The plea of the appellants that the deceased brought out the gun and fired at them, does not carry conviction. It is not the case of the appel--lants that the empty fired from the gun was in it. If the grin had actually been fired it would have been to the advantage of the accused to produce the empty also before the Police. It is not their case that there was an empty and that the police suppressed the fact of its production. We, therefore, find that Sher Muhammad had joined in the aggressive attack on the complainant party.
30. Sardar Khan appellant is stated to have produced the gun of the deceased before the police.
He himself has denied it. The evidence of the Sub-Inspector coupled with that of Allah Ditta (P. W. 7) clearly goes on to show that Sardar Khan produced the gun of the deceased before the police.
There was no reason for the Sub-Inspector to substitute Sardar Khan for Sher Muhammad appellant who claims to have produced the gun in the police station. We, therefore, find that Sardar Khan has also taken part in the incident but he arrived when the deceased had already fallen after receiving injuries. He can, therefore, be held vicariously liable only for causing injuries to the three P.
Ws. The conflicting of Ghulam Jilani, Sher Muhammad and Sardar Khan stands proved.
31. There is no corroboration forthcoming against other appellants namely Ghaus Muhammad, Khizar Bayat, Ismail and Nazar Muhammad. We, therefore, set aside their convictions and sentences on all the counts and direct that they should be released forthwith unless they are required to be detained lawfully in some other case.
32. In view of the fact that it has not been positively found that five or more persons have taken part in the assault, we set aside the convictions and sentences of Ghulam Jilani, Sher Muhammad and Sardar Khan appellants under section 148, P. P. C. We also set aside the conviction and sentence of Sardar Khan under section 302/149, P. P. C. The convictions of Ghulam. Jilani and Sher Muhammad appellants are altered to under sections 302/34, 447/34, 323/34 and 324/34, P. P. C.
And sentences awarded to them on these Counts are maintained. Similarly, the convictions of Sardar Khan will be altered to sections 447/34, 323/34 and 324/34, P. P. C. And sentences on these counts are maintained. We decide the appeal accordingly. We dismiss Criminal Revision No. 291 of 1968 which was filed by the complainant party for enhancement of the sentences imposed upon the appellant, but in which no notice was issued.