MIAN BURHANUDDIN KHAN,J.--This petition is directed against the judgment and order of the Lahore High Court, Lahore dated 4-2-1984 passed in Criminal Appeal 318 of 1980 whereby appeals filed by the petitioners against their conviction and sentences were rejected, and sentence of death passed on Umar Hayat and Shamsher and life imprisonment awarded to Abdullah under section 302/34, P.P.C. Plus fine of Rs.10,000 each were confirmed and murder reference was answered in the affirmative. They were also convicted and sentenced under section 307 read with section 34, P.P.C. To 10 years' R.I. And fine of Rs.2.000 each.
2. According to the prosecution, on 7-7-1977 both the deceased Mumtaz Ahmad and Riaz Hussain, alongwith Falak Sher P.W.15, were lying asleep on the roof of their house, while the other members of their family were lying asleep at some distance. In the night between 7/8-7-1977 the petitioners allegedly trespassed into the house and climbed its roof. Umar Hayat and Shamsher petitioners were armed with guns while Abdullah petitioner was carrying a rifle. Their intrusion attracted the watch dogs who started barking which awoke Ata Muhammad P.W.14 and Ahmad who saw, in the light of the bulb, Umar Hayat, Shamsher and Abdullah firing, from a close range, at the two deceased and Falak Sher simultaneously. Abdullah's rifle misfired whereas the fire-shots of the guns of the other two accused /petitioners injured the two deceased. While running away, after firing, the accused/ petitioners were seen by Muhammad P.W.16 and Haji Shahadat who tried to intercept them but they were threatened by the petitioners. The victims of the assault were removed to the hospital.
3. Dr. Muhammad 'Shah P. W.8 examined Riaz Hussain and found an irregular fire-arm wound 3" in diameter over the right side chest on its lateral aspect starting "4" below the axilla and 3-1/2" lateral to right nipple, with bleeding from the wound and a haematoma of about 4" diameter around the wound. The injury was declared dangerous.
The same doctor examined Mumtaz Ahmad and found a firearm wound 2-1/4" x 1" over the left side of chest 1-1/4" below clavial on anterior aspect of chest; the wound being entrance wound about 4" lateral to the same, was found an exit wound 3-1/2" x 2-1/2" being irregular; and five pellet wounds over the left upper arm and forearm at its upper end.
Dr. Shafi P.W.8 also recorded the dying declaration of Riaz Hussain, which is EXh.P.s. And wherein the deceased charged the petitioners in the manner that he and his brother Mumtaz Ahmad deceased practised as lawyers at Sargodha; they had come to their home on week-end i.e. Thursday and after having their meals alongwith other inmates of the house, they slept on the roof of their house where an electric bulb was on. At about 12-15 a. m. He felt pressure on his chest; he woke up and saw Shamsher accused/ petitioner pressing the barrel of his .12 bore gun on his chest; Umar Hayat accused /petitioner had done the same to Mumtaz deceased while Abdullah had put the muzzle of his rifle on Falak Sher P.W. And they all fired; Shamsher hit him on his chest; Abdullah's rifle did not fire; and shot fired by Umar Hayat accused/ petitioner hit Mumtaz deceased in the chest. In this dying declaration, motive for the crime is also given by the deceased i.e. a dispute over the landed property between the parties.
4. Contentions raised by the learned counsel for the petitioners are that the dying declaration Exh.P.J. Of Riaz Hussain deceased is a fabricated document; that with such type of injuries as received by him, it was well nigh impossible to be in such a state of mental alertness to make the statement attributed to him; that even otherwise there was evidence to show that Riaz Hussain, in the interregnum, was flanked by his relatives who narrated the events in his presence; and that even if Riaz Hussain was able to make such a statement, the fact of tutoring is conspicuously ascertainable.
Regarding the ocular account is submitted by the learned counsel Sh. Shaukat A.I that Ata Muhammad P.W.14 is father while Falak Sher P.W.15 is uncle of the deceased. Their evidence is bristling with innumerable doubts and infirmities and their testimony is in conflict with the medical evidence as they claimed that the petitioners Umar Hayat and Shamsher had fired at Mumtaz and Riaz Hussain by placing their guns on their chests. There was no burning, charring or blackening of the wounds according to the doctor. Thus, this very fact throws into distrust the testimony of these two so-called eye-witnesses.
5. We have carefully examined the contentions raised by the learned counsel for the petitioners and find that these questions have been satisfactorily met by the two Courts below. The learned High Court Judges in their judgment, observed as regards the dying declaration: "Dr. Muhammad Shafi P.W.8 explained in his cross-examination that the condition of Riaz was serious and dangerous when he was brought to the hospital at 12-40 a.m. And he did not start recording his statement at that time. According to him, he gave him blood and glucose and when his condition improved with his treatment, he recorded his dying declaration. The Medical Officer also stated that Riaz Hussain deceased was brought to the hospital by his father and other relatives but them is no mention in his statement that the father of the deceased was present when he recorded his dying statement... Muhammad P.W.16 in whose presence the dying declaration was recorded, unequivocally stated in his cross-examination that the doctor did not take down the statement of Riaz Hussain in the presence of Ata Muhammad. There is no indication in the statement of the Medical Officer or Muhammad P.W.16 that the deceased was prompted at the time he made his dying statement. As regards the third objection, the Medical Officer stated that he completed the statement of the deceased at 2-30 a.m. He kept the same with him and produced it before S.I. Habib Ullah P W.18 on his arrival in the hospital."
Regarding other contentions the learned two Courts below have made detailed discussion in the impugned judgments and have accepted the prosecution case as factually correct. Thus, we find that this petition merits no consideration. Leave refused. Petition dismissed.