1. MUHAMMAD GUL, J.-This appeal by special leave is directed against the judgment of a Division Bench of the Peshawar High Court, whereby the conviction of appellant Fazal Diyan for the murder of Fazl Rahim was upheld and death sentence passed by the Additional Sessions Judge was confirmed in the circum--stances set out below.
2. The parties belong to village Bela Naiko Khan, P. S. Daudzai, in Peshawar District. The incident took place at about 8 a. m. On 10-4-66 when the deceased was engaged in bringing loose earth on a he-buffalo to his village. At the canal bridge near the village, he saw the appellant standing armed with a shot-gun. As the deceased went past him, he fired at deceased from behind hitting him on the left buttock. The deceased staggered for a short distance, then fell in a nearby field belonging to Rahimullah.
3. Muhammad Shafi, a first cousin of the deceased, is the only eye-witness to the occurrence. He had gone to see his tomatoe---field at some distance from the scene of occurrence and on his way back had to see his wheat field. Both he and the deceased raised alarm which attracted Said Ali and Mustanir. The latter two however were not examined. The deceased was placed on a cot and was carried to a distance of about 200 paces where the party took a tonga for the police-post Hashtanagri about 3 miles away, where the deceased lodged the report (Exh. P.A./1) at 9-10 a. m.
4. This was recorded by S. H. O. Murad Khan who endorsed it to P. S. Daudzai for the registration of the case. This was later admitted in evidence as the dying declaration. The case was investigated by A.
5. S. I. Shaida Muhammad who after preparing the injury statement sent the deceased to the hospital for medical examination and himself proceeded for spot investiga--tion. The deceased remained indoor-patient in the hospital but expired 10 days later on the 21st of April 1960. In the meantime, the appellant disappeared from the village and remained fugitive until the 4th April 1970.
6. In the dying declaration (Exb. P.A./ 1), motive is briefly hinted as blood-feud. Evidence produced also showed that the deceased bad married a sister of the appellant about six or seven months prior to the occurrence. He however turned her out and she began to reside with the appellant. Later, the deceased took a deputation to persuade the appellant to send his sister to the deceased's house, but the appellant did not oblige him and the deceased then took another wife which made relations between the parties all the more bitter. Sometime before the present incident, the appellant was also tried for the attempted murder of the deceased, but was acquitted.
7. The medical examination of the deceased prior to his death showed that deceased had seven fare-arm entry wounds each --" x ----- over the posterior surface of left buttock near the natal clift and two fire-arm entry wounds --" x ----- each, over the right ,side of sacral region. No charring present. There were corresponding exit wounds.
8. The post-mortem examination revealed that there was a fracture in the left pubic bone. Right and left lungs were both congested and the pulmonary artery contained a big clot. In the opinion of the doctor, the injuries suffered by the deceased were sufficient to cause his death in the ordinary course of nature.
9. The appellant's conviction rests on the statement of the solitary eye-witness Muhammad Shafi who cannot be described as disinterested. However, report Exh. P.A./1, which as pointed out already was admitted as his dying declaration was accepted as corroborative evidence of the eye- witness. The fact that the appellant remained at large for about 4 years was also taken as an incriminating circumstance.
10. To appreciate the defence plea, it is necessary to mention at this stage that on the same day, namely, 10-4-66, one Torai, a first cousin of the appellant, was also murdered, at a distance of about 310 paces from the place where the deceased in this case was fired at. The report of that murder incident was made by one Wali Muhammad to A. S. I. Shaida Muhammad when he was on way to village Bela Naiko Khan, in connection with investigation of this case. In his report, Wali Muhammad named Abdul Aziz, Habibur Rehman, Muhammad Shafi (P. W. In this case) and the deceased Fazal Rahim as the assailants. The report was actually made at 11-15 a. m. But the incident involving the life of Torai was stated to have taken place at 9 a. m. The appellant while pleading his innocence alleged that the deceased was injured during the attack in which his cousin Torai was killed on the same day. The case set up by the appellant was that while the attack on Torai was on, some unidentified companion of the deceased fired at the deceased in confusion.
11. However, no evidence was produced in support of this extra--ordinary plea and the matter rests in the statement of the appellant. The l-1 igh Court, however, held that the murder of Torai was a separate incident both in point of time and place, in relation to which there was a separate trial.
12. Leave was granted to consider whether keeping in view the principles for the safe dispensation of criminal justice, the trial Court and the High Court were justified in relying upon the statement of the solitary eye-witness P. W. Muhammad Shafi in the background of enmity between the parties and whether his evidence was sufficiently corroborated by the report Exh. P.A./1 by the deceased which was admitted in evidence as dying declaration. It was also considered necessary to examine whether the High Court was right in holding that Torai was killed in a separate incident, disconnected with the incident during which the deceased Fazal Rahim received fatal gun-shot injuries.
13. Learned counsel for the appellant argued that it was wholly unsafe to maintain the conviction of the appellant on a capital charge on the evidence of Muhammad Shafi, who was an interested witness, being closely related to the deceased. But the argument. Overlooks the fact that Muhammad Shafi is a common relation of the parties in that the appellant is the first cousin of the witnesses father. It is therefore impossible to suggest that Muhammad Shafi would falsely implicate a cousin of his father to support his own cousin, particularly when there is no suggestion of any animus against the appellant. It is true that Muhammad Shafi was named as one of the accused for the murder of Torai. But the fact remains that the report of that incident was lodged later, after the investigation in the instant case had already started, and Wali Mohammad who lodged the report in that case, knew that Muhammad Shafi had been named as the sole eye- witness in the instant case. Therefore, it is not possible to avoid the impression, that Muhammad Shafi was listed as accused in the other case, in order to nullify the effect of his evidence in this case. In our anxiety to do full justice in the instant case, we requisitioned the file relating to the murder of Torai. Indeed it was on that hypothesis that the learned Judges of the High Court, after a careful analysis of evidence in that case, gave benefit of doubt to acquit all accused in that case including Muhammad Shafi. That apart, it is not denied that Muhammad Shafi, who had his tomatoe and wheat fields close-by was a natural witness. The fact that no time was lost in making the report at Police Post Hashtanagri also excludes the possibility of false implication.
14. It was next urged by the appellant's learned counsel that the High Court and the trial Court were wrong to rely upon the dying statement of the deceased. The argument was that the deceased at the time when he made the statement was not a free agent, for he was then accompanied by Muhammad Shafi and others and the statement was made at their prompting. It was further urged that the statement having been made before the police officer considerably diminished its evidentiary value. It was therefore emphasised that the quality of the dying statement was not such that it should sustain a conviction on a capital charge. It was also urged that the fact that the appellant remained absent from the village for four years, did not necessarily create a presumption in favour of his guilt. To support his argument, learned Counsel cited two judgments of this Court in Abdul Razik v. The State (P 'L D 1965 S 4C 151) and Ghulam Farid v. The State (PLD 1968 SC 264). In our opinion, the argument of learned counsel does not proceed on a proper understanding of the two precedent cases. In the earlier of these two cases, the broad principle laid down was that the credibility of a witness or any other item of legal evidence is not "in any respect a question of law . . . . But (is) merely an application of simple human judgment." The main question that fell for determination in that case related- to the identity of the accused. The case arose out of a-shooting incident at 6 O'clock in the early morning of December 22, 1961, when it was still dark. There was no eye-witness to the occurrence and the medical evidence and ambiant circumstances pointed to a probability of volley of shots fired by a number of assailants, who according to the prosecution version, were three in number, from behind the deceased, from a distance of some 70 yards, when he was easing himself. The conviction of the accused in that case rested entirely on the two dying declarations reinforced by the circumstance that the three accused disappeared from the village, two of whom remained at large throughout and the third appeared after about seven months of the occurrence. Of the two dying declarations, the first, which was the initial report made before the Police, contained greater details of the transaction, and the second, which was recorded by-a Naib Tahsildar was not only brief but in terms was different from the earlier declaration. After taking into consideration all these circumstances, this Court took the view that there appeared "immediately" a doubt whether the maker of the two statements could "at all be sure of the identity of his assailants".
15. The facts of the instant case, on the other hand, are radically different. Here we are concerned with a broad day-light incident which besides the deceased was witnessed by Muhammad Shafi who was close to the scene of occurrence. There is not the slightest suggestion of mistaken identity of the appellant, the parties and the sole eye-witness being related to each other fully know each other. Murad Khan S. H. O. Who was examined as P. W. 7, to a question in cross-examination, emphatically repudiated the suggestion that any third person prompted or interfered while the deceased made his report and that it was voluntary.
16. Similarly the case of Ghulam Farid also proceeded on its peculiar facts. It was also a case of the dying declarations, one of which was made before the Police at the police station and the other before a Magistrate. The dying declaration before the Police was more detailed than the other which was recorded by the Magistrate which was also in somewhat different terms from the initial report. The main point which fell for the decision of this Court was whether of the two dying declarations the one made elsewhere is more worthy of reliance than the other before the Police when the relatives who had brought the injured man to the thana are generally present and usually cannot be prevented from putting a prepared case through the mouth of the deponent. It is pertinant to point out that the dying statement in the instant case, is remarkable for its brevity which gives it an impress of genuineness and voluntary character in the sense of being free from external prompting. It is a simple straight--forward account of incident and the appellant's connection with it.
17. Thus it will be seen that the facts of the instant case being materially different the dicta in the two precedent cases are not attracted. We are satisfied that Muhammad Shafi is a natural and trustworthy witness.
18. It yet remains to consider the plea raised by the appellant in his defence, namely, that the deceased was accidentally injured during the confusion in the transaction in which he along with Abdul Aziz, Habibur Rehman and Muhammad Shafi attacked Torai, a first cousin of the appellant, who was killed as a result. As pointed out already, the judicial record of that case was summoned.
19. The trial Court in that case, after good deal of hesitation, accepted the prosecution version that "Fazal Rahim received the injuries at the same time as the deceased (Torai)but the rest of his accomplices made it a point to see that nobody from the side of deceased should go to the Police-- station and made a report before Fazal Rahim made his own." This aspect of the case was critically examined by the learned Judges of a Division Bench who heard the appeal against the conviction of Abdul Aziz, Habibur Rehman and Muhammad Shafi (Fazal Rahim having died in the meantime) and felt no hesitation in rejecting the above fanciful story. In coming to that conclusion, the learned Judges of the Division Bench based themselves on two outstanding facts which were beyond any controversy, namely, the exact hour at which the two reports were respectively made and the probable time of the occurrence in each case as entered in the report. There can be no gainsaying the fact that the report in the instant case was made at 9-10 a. m. In which the actual time of incident was mentioned as 8 a. m. On the other hand, the report by Ali Mohammad in the other case was made at 11-15 a. m. In which the time of occurrence was mentioned as 9 a. m. Even if the recital in the report in the other case is accepted at its race value, it cannot be suggested with any degree of reason that Fazal Rahim despite his incapacity brought about by fatal injuries should have been able to hurry from the scene of occurrence to be able to lodge the report at 9-10 a. m. Within 10 minutes of the incident at police-post Hashtangari 3 miles away from the scene of occurrence. The suggestion, to say the least, is fantastic and if we may say so was rightly rejected by the learned Judges of the Division Bench in the appeal in the other case. On the facts of that case, the learned Judges of the Division Bench were well justified to take the view that the murder of Torai was a reaction to the earlier transaction in which Fazal Rahim received fatal gun-shot injuries.
20. Finally, the appellant's learned counsel pleaded for the reduction of the capital sentence on the ground that the appellant's case had been hanging fire and that if his case had been decided before the time President assumed office as Head of the State on the 20th of December, 1971, the appellant would have benefited by the "general amnesty" announced at that time. We cannot take judicial notice of any such announcement, nor can we properly grant relief to the appellant on that account. Furthermore, the appellant is to thank himself if his case could not be decided within such period so as to qualify him for relief under the "general amnesty", for he remained a fugitive from justice for long four years. In any event, the matter rests within the executive discretion in which this Court does not interfere.
21. For the foregoing reasons, we are of the opinion that the appellant was rightly convicted and sentenced and his appeal is dismissed.