SHAH ZAMAN BABAR, J.-Khalil Khan (30), son of Mukarram Khan, Masal (28), son of Abdul Ghani, and Abdul Wahid (28), son of Madin, all residents of village Gulbela, Tehsil Peshawer, stood trial under section 302/34, P. P. C. For the murder of Tamash Khan, son of Abdul Ghani, resident of Ambadher, and under section 307/34, P. P. C. For having attempted at the life of Fazal Dad P. W. By firing at them on the 27th of June 1967, in the area of village Ambadher distance 3/4 miles from Police Station Batagram, Tehsil Charsadda, in furtherance of their common intention. The trial was held by Mr. Muhammad Khurshid Khan, Additional Sessions Judge, Peshawar, who by his judgment dated 28th November 1968, found the three accused guilty of offences under sections 302/34 and 307/34, P. P. C. And convicted them accordingly. Khalil Khan being the principal accused, was sentenced to death, subject to confirmation by the High Court. Masal and Abdul Wahid accused were sentenced to transportation for life each. All the three accused were sentenced to three years R. I. Each under section 307/34, P. P. C. In case of Khalil it was ordered that the sentence of imprisonment should commence if and when the death sentence is not confirmed by the High Court and in case the death sentence is altered to that of transportation for life, the two sentences shall run concurrently. In case of Abdul Wahid and Masal both the sentences were ordered to run concurrently.
2. Khalil Khan has preferred appeal against the convictions and sentences. Proceedings under section 374, Cr. P. C. For confirmation of the death sentence are also before us. Masal and Abdul Wahid have preferred a separate appeal against their convictions and sentences. Abdul Ghani, father of Tamash deceased, has also come in revision for the enhancement of the sentences of Masai and Abdul Wahid under section 302/34 to the normal penalty of death, and also for the enhancement of their sentences under section 307/34, P. P. C. This judgment will dispose of all these three matters.
3. One Abdur Rahim of village Ambadher had died about 5/6 years before the present occurrence.
Abdul Ghani father of Tamash deceased, and Fazal Dad (P. W. 10), had instituted a suit for possession of landed property in village Ambadher against Mst. Bibi Taja, widow of Abdur Rahirn, and other heirs of Abdur Rahim. Eventually the Civil litigation was decided in favour of Abdul Ghani.
In the Civil litigation Khalil Khan appellant being related to Abdur Rahim deceased, acted as attorney of Mst. Bibi Taja and others. It is also alleged that Khalil Khan appellant was in possession of the disputed land. Abdul Ghani in spite of efforts to take possession of the land decreed in his favour from Khalil Khan appellant, failed to do so.
4. The three appellants belong to village Gulbela, which is at a distance of about six miles from village Ambadher, Masai is alleged to be the servant of Khalil Khan, while Abdul Wahid is a house and land tenant of Khalil Khan.
5. The prosecution case is that on the 27th of June 1967 at about 8 a.m. In the morning Abdul Mastan, Dad Muhammad alias Kharogai (abandoned P. Ws.) had accompanied Tamash deceased and Fazal Dad (P. W. 10) to weed the sugarcane field of the deceased and Fazal Dad, as laborers.
This land is at a distance of about a furlong from the abadi of village Ambadher towards the North.
The deceased and Fazal Dad were standing by the side of the laborers in the field. In the meanwhile Khalil Khan, Masai and Abdul Wahid appellants armed with topaks came from the side of the dhera of Mahmud Khan. The three accused fired a volley of shots at Tamash Khan deceased and Fazal Dad P. W. When the accused had reached the water channel. Tamash ran towards the North in the direction of another water channel Grab), while Fazal Dad in the first instance towards the south and thereafter turned towards the east. The three accused appellants ran towards the field of Jamil to intercept Tamash deceased, and when the three appellants came in front of Tamash while Tamash was running, they fired at him hitting the latter as a result of which he fell down. Thereafter the appellants ran towards the village. Fazal Dad P. W. And A.I Haidar (P. W. 11) brought a cot from a close by dhera and placed Tamash on it. They took Tamash while in injured condition to the village and from there to Police Station Batagram in the tonga of Saadullah (P. W.
9). At Police Station Batagram, Muhammad Tahir (P. W 15) Muharrir A. S. I. Recorded the dying declaration Exh. P. A/1 of Tamash in the presence of Saadullah (P. W. 9.) and Faqir Shal (abandoned P. W.), at about 9/10 a.m. On the same day, while Tamash was in possession of his senses. The thumb-impression of Tamash Khan declarant, Saadullah (P. W. 9) and Faqir Shal were also obtained on Exh. P. A/ t in token of its correctness. The dying declaration Exh. P. A/1 was incorporated in the F.
1. R Exh. P. A. The A. S. 1. Prepared the injury sheet Exh. P. N: of Tamash and sent him to the hospital at Shabqaddar. Tamash expired on the way before reaching the hospital. One Nawab (P. W. 12) was also injured during the firing while irrigating his field at a distance of about three furlongs from the scene of occurrence. A. S. I. Muhammad Tahir prepared the injury sheet of Nawab P. W. Also. Masai accused also arrived at the police station and lodged the report Exh. P. A/2 on the same day viz. 27-6-67 at 10-45 a.m. Masai appellant was arrested in the murder case. On the report of Masai a cross-case under section 307/34, P. P. C. Of ineffective firing charging Fazal Dad, Tamash, sons of Abdul Ghani, and one Mohibullah was registered. Nawab was also sent to the hospital for medical examination. The A. S. I. Then came to the spot after covering a distance of about 3/4 miles, and prepared the site plan Exh. P. E. Point No. 1 in the site plan denotes the place where Tamash deceased and Fazal Dad P. W: were present (in their sugarcane field) and were allegedly fired at frown point No. 4 by the accused appellants. Dad Muhammad and Abdul Mastan (abandoned P. Ws.) were shown present at point No. 2 (in the chest height sugarcane field) distance about 10 paces from point No. 1. Point No. 3 denotes the place where Tamash deceased after the first firing allegedly ran and was fired at and hit from point No. 5. The distance between points 1 and 3 is shown 48 paces. Blood-stained earth and blood-stained grass (Exhs. P. 7 and P. 8) were recovered from point No. 3. Point No. 3 is shown inside a dry water channel Grab). The distance between points 1 and 4 is shown 40 paces and the distance between points 4 and 5 is shown as 45 paces. Point No. 7 indicates the Jhangi of Tamash deceased, from where A.I Haidar (P.
W. 11) allegedly saw the occurrence. It is distant 57 paces from point No. 3 and 91 paces from point No. 5. Point No. 6 is shown to be the place where Raza Khan (abandoned P. W.) saw the occurrence.
This place is shown 106 paces from point No. 4 and 120 paces from point No. 1. In between is shown a ploughed land. The A. S. 1. Took 5 cardboard pieces Exh. P. 1 from near point No. 4 towards point No. 1, vide memo. Exh. P.G. Abdul Wahid accused surrendered to Muhammad Qasim, A. S. I. (P. W. 2) at Police Station Batagram on 25-7-67 Khalil appellant surrendered to Inspector of Police on 6-12-
67. He was bailed out by the District Magistrate. Muhammad Tahir handed over the investigation to Munawar Shah (P. W. 14) A. S. I. On 27-6-67 Munawar Shah A. S. 1. Took into possession two empties Exh. P. 2, of 5-shot rifle from the spot vide memo. Exh. P. H., in the presence of Khan Zaman (P. W. 5)
Muhammad Aurangzeb Khan (P. W. 3) then A. S. I. Police Post Shabqaddar prepared the injury sheet Exh. P. C. Of Tamash deceased on 27-6-67 in the Civil Hospital, Shabqaddar.
6. Dr. Abdur Rauf (P. W. 1) performed the post-mortem examination on the dead body of Tamash, aged 30 years, on 27-6-67 at 12 noon, and found the following injuries on his person:--
(1) Five entrance fire-arm wounds, each being 1/2" x 1/2" on the front of lower part of left side of chest and front of upper part of left side of abdomen covering an area, 6--" x 6--", one of the wounds was on the chest while the rest four wounds were on the abdomen.
(2) Three exit fire-arm wounds each being 1" x 1" on the left lower back covering an area of Y x 9-- below the lower angle of the left scapula.
(3) A fire-arm wound, 1--" x --", skin deep on the front of left collar bone area, caused by grazing of fire-arm.
Abdominal walls, peritoneum, small and large intestines were injured. The stomach was injured and empty. Cause of death was haemorrhage and injuries to stomach, small intestines and large intestines as a result of fire-arm. The injuries in the ordinary course of nature were sufficient to cause death probable time between injuries and death was within 3 hours. Between death and post-mortem was two hours. Two pellets weighing 120 grains were recovered from within the abdominal cavity and handed over to police. The doctor opined that during the first two hours of the injuries sustained by Tamash, he could be in a position to speak coherently. The doctor excluded the possibility of the deceased having become unconscious on account of his injuries in question for the reason that there was no injury to the brain substance or heart. The doctor also was of the opinion that in the instant case the deceased could have fainted on account of the injuries received by him.
7. The same doctor examined Nawab P. W. On 27-6-67 At 10-15 a.m. And found an entrance fire- arm wound, 1/3" x 1/3" on the tip of right shoulder on the front side. Bullet weighing 180 grains was removed by operation from the area beneath injury No. 1 and handed over to police. The nature of the injury was considered simple, caused by fire-arm within three hours duration.
8. At the commencement of the trial the accused-appellants pleaded not guilty to the charges. At the close of the prosecution the A. P. P. Gave the following statement on 25-11-68:- "I abandon P. Ws. Raza Khan, Dad Muhammad alias Kharogai, Abdul Mastan and Faqir Shal as having been won over as they are not likely to support the prosecution story. They are however available for examination if so desired either by the Court or by the defence."
9. The case was adjourned to 26-11-68 for recording the evidence of P. W. Azimullah, a witness of identification of the dead body of Tamash deceased at the time of post-mortem examination. On 26-11-68 counsel for the accused-appellants submitted an application that the abandoned P. Ws.
Be examined as Court witnesses. The trial Court passed the following order in respect of this application on 26-11-68: "By this order I propose to dispose of an application submitted on behalf of the accused for examining Raza Khan, Faqir Shal, Dad Muhammad alias Kharogai and Abdul Mastan as Court witnesses. After hearing the learned defence counsel and the A. P. P. On behalf of the State, I am of the view that it is not necessary in the ends of justice to examine these persons as Court witnesses.
It has been specifically stated by the A. P. P. That these witnesses have been won over by the accused. Even otherwise too, after examining the record, I am of the view that the examination of these persons by the Court will not serve any useful purpose. The defence, if it so desires, can examine them as defence witnesses. In view of this position, the present application fails and is hereby rejected."
10. Khalil appellant in his statement before the committing Magistrate had denied the charges. In his statement at the trial on 26-11-68 Khalil while denying the charges, admitted that he had retained the possession of the land in dispute on behalf of widow and minor son of Abdur Rahim and would not surrender possession to the father of the deceased. Explaining his absence from the village from 27-6-67 till 6-12-67, he stated that he originally belongs to village Gulbela, but used to come to Ambadher to look after the property of the widow and minor son of Abdur Rahim. He added that he was in village Gulbela on the day of occurrence and on learning of the false charge against him, he kept out of the way of the police out of fear. He added that he has been falsely charged by the deceased in the dying declaration because he was the main stumbling block in their way to obtain possession of the land for the widow and minor son, aged six years, of Abdur Rahim deceased. In response to the question, "what is your statement and why are you charged", Khalil appellant stated:- "Abdur Rahim deceased was the grandson of my maternal uncle. Mst. Bibi Taja, widow of Abdur Rahim, is the daughter of Aslam Khan, my maternal uncle. 1, therefore, looked after the property of Mst. Bibi Taja and her minor son after the murder of Abdur Rahim. Actually the widow of Abdur Rahim charged Saadullah, P. W's. Father for the murder of Abdur Rahim. As there was no one to look after the interest of the widow and the minor son of Abdur Rahim, I began to live at Ambadher, occasionally, to protect her interest against the father of the deceased who was out to grab the property. I fought the Civil cases brought against the widow and minor son of Abdur Rahim by the father of the deceased and refused to surrender possession in spite of the decree of the civil Court.
I went up in appeal and partially the appeal was accepted in favour of the widow and the minor son of Abdur Rahim. Uptil the day of the occurrence, I maintained the possession on behalf of the widow and the minor, and on the day of occurrence when I was away to my village Gulbela, I learnt that the deceased party went to take possession of the land by force, who were resisted by some servants of the widow and the minor, resulting in a riot. I have been charged falsely by the deceased in order to take me off their way and smooth their path to take forcible possession of the land."
He declined to produce defence evidence.
11. Abdul Wahid appellant denied the charges in his statement before the committing Magistrate and also at the trial. He stated at the trial that he had been falsely charged on account of his friendly relations with the family of Abdur Rahim deceased. Explaining his absence from 27-6-67 to 25-7-67, he added that he was in his village but out of fear he kept out of the way of the police till he surrendered on 25-7-67. He declined to produce defence. Similarly Masai appellant denied the charges in his statement before the committing Court. He also disclaimed the charges at the trial.
He admitted to have lodged a report on 27-6-67 at 10-45 a.m. In Police Station Batagram, but added that the copy of the report produced in Court is not the correct reproduction of his report. He added that he stated to the police that in fact he was fired at by Tamash deceased, Fazal Dad P. W.
And Mohibullah. Explaining the charge against him in the dying declaration, he stated that he was charged because he is the servant of Shahbaz, minor son of Abdur Rahim deceased, with whom the deceased had bitter enmity over the possession of landed property. He declined to produce defence evidence.
12. Mr. Mahmood A.I Qasuri, learned counsel for Khalil appellant, contended that Tamash deceased was in unconscious state when his dying declaration Exh. P.A/1 was recorded by P. W. Muhammad Tahir, A. S. I. He argued that material evidence to this effect was available in the statement before the committing Magistrate of Raza Khan (Abandoned P. W.), who was mentioned in the dying declaration Exh. P. A/l, and Faqir Shal (abandoned P. W.) who was a witness of the dying declaration Exh. P. A/1. He, therefore, took vociferous exception to the non-production of these two P.
Ws. By the A. P. P. Or in the alternative the1r non---examination by the trial Judge as Court witnesses, as they were necessary witnesses. He also contended that abandoned P. Ws. Abdul Mastan and Dad Muhammad alias Kharogai should have been examined either by the P, P. Or by the Court as the evidence of these two P. Ws. Was expedient in the circumstances of the case. He asserted that the non-examination of the four witnesses as prosecution witnesses or Court witnesses has caused prejudice to the defence of the appellants.
13. In Stephen Seneviratne v. The King (AIR 1936 P C 289), at page 290, it has been ruled:- "It is a wrong idea that the prosecution must call witnesses irrespective of considerations of number and reliability or that it should discharge the functions both of prosecution and defence. If it does so, confusion is very apt to result, more specially so when the prosecution calls witnesses and proceeds automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative, on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution."
PLD 1964 Dacca 420), it has been observed at page 433 in para. 26:- "Having regard to the circumstances discussed we feel that the non-examination of Abdur Rahman and the mere tendering of Jabbar A.I in the present case arose from oblique motive of the prosecution and further that their evidence was also essential for unfolding the narrative on which the prosecution was based. The mere tendering of Jabbar A.I was as good as not examining a person who was most competent to speak about the occurrence. We feel that the salient tests are only those of oblique motive and essentialness for unfolding the narrative on which the prosecution is based as propounded by the Privy Council. These are the tests and there should not be any other limits to the prosecutor's discretion in the matter of examining and tendering of prosecution witnesses. What witnesses are essential and which motive is oblique, will depend upon the circumstances of each case and it is not possible to specify them. As a rule of prudence, however, a material witness should not be merely tendered but should be asked by the prosecution to give evidence. Tendering should be confined to witnesses of secondary importance only. If the witness is important, the prosecution should call him and examine-him-in-chief and should not tender him, though he can make the examination-in---chief as brief as circumstances permit. If the witness is unimportant, the prosecution may tender him for cross-examina--petition.
If the prosecution withholds a witness on the ground of unreliability, some evidence of unreliability should be shown. When sufficient evidence has already been led, the tendering of a witness will not be treated as withholding of such a witness, unless it is from oblique motive."
PLD 1962 Pesh. 91), it has been geld :- "On the matter of ocular evidence in the case the learned counsel for the appellant tried to make capital of the fact that a second eye-witness, Sardar A.I, mentioned in the first information report, has been withheld by the prosecution. He drew out attention to a Standing Order No. 39 from the Judicial Commissioner's Court, enjoining on the prosecution to produce all persons mentioned as eye-witnesses in the first report, especially in a murder case. Several rulings were also quoted pressing on our attention the obligation on th- part of the prosecution to bring on the record all evidence available in a murder case, whether against or for the prosecution. There can be no dispute with the proposition that the prosecution; should not purposely withhold the evidence of any material witness merely because if produced, the prosecution case would be damaged. The public prosecutors must perform their duty fairly and fearlessly in this matter. All eye-witnesses should be produced in such cases as prosecution witnesses unless in regard to any of them the prosecutor feels that he has purposely turned hostile, in which case, he can be abandoned for reasons stated, but in spite of it, his presence should be made available in Court for such use as the Court or the defence may make of him. While stating this as a general rule to be followed, it must, however, be emphasized that the prosecution is under no obligation to produce those persons as prosecution witnesses whom it considers to be false or unnecessary; nor can any adverse inference be drawn against the prosecution for dropping such witnesses. If a material prosecution witness is purposely withheld by the prosecution from giving evidence without disclosing any reason, the presumption is that his evidence, if recorded, would have gone against the prosecution, but the presumption cannot be extended to the point that his testimony would necessarily have supported the defence version. If a witness is not produced by the prosecution, it is open to the defence to make a request to the Court to examine him as a Court witness, or alternatively, to produce him in defence. If no such action is taken, the initial inference that is to be drawn adversely to the prosecution may be neutralized."
14. Judging the non-production of the four witnesses by the P. P. Fin the light of these dictums of law, we are of the vie that it was incumbent on the P. P. To examine P. W. Raza Khan, who has been mentioned in the dying declaration Exh. P. A/I, and A P. W. Faqir Shal, who is a witness of the dying declaration Exh. P. A/I and their non-production was from oblique motive o the P.P. The statement of Fazal Dad P. W. Shows that he had no named Abdul Mastan and Dad Mohd. Alias Kharogai as to have gone to the land of the witness for the purposes of weeding, in his statement before the police copy Exh. D. A. Thus it was not expedient for the prosecution to have not produced these two witnesses at the trial.
15. In Ibrahim and others v. Emperor (AIR 1933 Sind 49), at page 50 it has, been observed:- "The word discretion in itself implies vigilant circumspection and care; therefore where the Legislature concedes wide discretion it also imposes a heavy responsibility.
Discretion by section 540, Cr. P. C. Is wide, but the section is not wholly discretionary. The last part of it imposes upon the Magistrate an obligation; it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. If the Magistrate therefore is of opinion that the evidence of certain witnesses is essential then the section imposes upon him the obligation of summoning them. Even if the evidence, though not essential, is yet expedient, then the Magistrate does not exceed his authority in putting these witnesses into the box."
"There may be some doubt as to the duty of the Public Prosecutor in calling prosecution witnesses who know facts but are likely to turn hostile, but there is a duty cast upon the Court to arrive at the truth by all lawful means and one of such is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak to important relevant facts; and if the trial Court fails to do it, the appellate Court should avail itself of the power conferred by section 428, Cr. P. C."
16. The prosecution case is supported by the dying declara--petition and the ocular evidence of Fazal Dad (P. W. 10) and A.I Haider (P. W. 11).
17. The following is the English rendering of the dying, declaration Exh. P. A/1 of the deceased: --- "Today in the morning I alongwith my brother Fazal Dad went to weed our field. Khalil, Masal, son of (name unknown) residents of village Gulbela and Wahid, son of Madin, resident of Ambadher came armed with shotguns and rifle, at about 8 a.m. And immediately started firing at us. I was hit and injured with the shot of Khalil. A.I Haider son of Muazam Din and Raza Khan, son of Umara Khan, residents of Ambadher were present at the spot. We had a dispute over the land and in view of this dispute I have been fired at. I charge all the three."
As against this version, Fazal Dad (P. W. 10) brother of Tamash deceased deposed: --- "On the day of the occurrence, Abdul Mastan and Kharogai along with me and Tehmash Khan (deceased) went to our land. Abdul Mastan and Kharogai were to weed our fields as labourers.
That land of oursis at a distance of about a furlong from the village abadi. The two labourers, namely, Abdul Mastan and Kharogai also known as Dad Mohammad, went to our land before me and my brother Tehmash, I and my deceased brother followed them to the field. I and Tehmash Khan stood there in the land by the side of the two labourers. In the meanwhile, all the three accused present in Court, namely Masal, Wahid and Khalil Khan armed with topaks, came from the side of the Dhera of Mahmood Khan. The three accused fired a volley of shots at me and my brother Tehmash when they reached the water channel. Thereupon Tehmash ran towards the north in the direction of another water channel Grab), while I, in the first instance, ran towards the south and thereafter turned towards the east. The three accused in the meanwhile ran towards the field of Jamil to intercept Tamash (deceased) and when the three accused came in front of Tehmash while the latter was running, they fired at him, hitting the latter, as a result of which he fell down. Thereafter, the accused ran towards the village. I and A.I Haider P. W. Brought a cot from a, close by dhera and placed Tehmash Khan on the aforesaid cot. We then took the cot to the village and; from there carried the injured to Police Station Batagram in the tonga of Saadullah P. W.
Tehmash who was then in his senses, made the report and thumb-marked the same in token of its --correctness after it was read over to him. Faqir Shal and Saadullah P. W. Also thumb-marked that statement in the police-- station."
"My statement was recorded by the S. I. At the spot. My statement was not recorded at the police station. The: statements of Raza Khan and A.I Haider P. Ws. Were recorded --at the spot. In his statement to the police at the police station, Tehmash (deceased) said that Abdul Mastan and Kharogai were working in our land at the spot at the time of the occur--rence . . . . I stated in my statement to the police that on the day of occurrence, Abdul Mastan and Kharogai went to our land for the purposes of weeding and witnessed the occurrence (confronted, not so recorded in Exh. D.A.) I also gave the directions in which I and my brother Tehmash ran after we were fired at in the first instance (confronted, not so recorded in Exh. D.A.). I also stated to the police that through the-- land of Mahmood Khan the three accused came in front of Tehmash and there too, fired at him and hitting him, (confronted, not so recorded in Exh. D.A). I also stated to the police that the firing took place at two places (confronted, not so recorded in Exh. D. A). It is apparent from the police statement of this witness (copy Exh. D.A) that he has not mentioned the names of A.I Haider (P. W. 11) and the --abandoned witness Raza Khan. A.I Haider P. W. Supported the evidence of Fazal Dad (P. W. 10) A.I Haider is a land tenant of the deceased and Fazal Dad P. W. This witness stated in cross-examination: --- I did not actually see the first three shots having been fired and it was on the aforesaid shots having been fired that my attention was diverted. Tehmash (deceased) was actually in, the irab when he was fired at for the second time by the three accused from the chilli field. It is incorrect that the assailants had concealed themselves and had taken shelter behind the bundle of sugarcane and thereafter fired at the deceased. In fact, they fired at the deceased from in front . . . . . .
I did not state to the police that the three accused took shelter behind the dher of sugarcane and then fired at the deceased (confronted so recorded in Exh. D. B). . . . . At the time of the firing of the first three shots, the deceased and Fazal Dad were sitting on pulla."
Yet a third version of the occurrence was given by P. W. 12 Nawab. It is not denied by the prosecution that Nawab received the injury during the firing at the time of the occurrence. This witness stated: --- "On the day of occurrence after the tea, the firing started, I was in my land irrigating it. In the aforesaid firing I sustained injury on my right shoulder with a bullet. I did not see anybody firing, nor can I say as to with whose shot I was hit."
"I was still in my land when I heard the reports of firing. Large number of shots were fired from different directions. About 300/400 shots were fired in all. The firing was still going on while I was proceeding to my house."
Munawar Shah (P. W. 14) recovered two empties Exh. P. 2 of 5-shot rifle from the spot in the presence of Khani Zaman "The two empty shells were recovered from the place where Tehmash was said to have fallen down. The blood-stained earth was also taken into possession from that place."
Blood earth and grass were taken by S. I. Muhammad Tahir from point No. 3. This point shown in the site plan in the dry Irab. The recovery of two rifle empties from point No. 3 in the dry Irab coupled with the statement of A.I Haider (P. W. 11) that Tamash deceased was actually in the Irab when he was fired at for the second time by three accused from the chilli field, suggests an inference that the deceased was armed with rifle at the time of his position at point No. 3. The police statement of A.I Haider (P. W. 11) that the accused took shelter behind the dher of sugarcane and then fired at the deceased coupled with the evidence of Nawab P. W. 12 that large number of shots were fired from different directions and that about 300/400 shots were fired in all, amply indicates that the parties in the occurrence had cross---firing in which Tehmash deceased, in all probabilities received injuries in the front portion of his body.
18. Thus the prosecution story from the stage of the dying declaration of Tamash, the police statement of Fazal Dad and the evidence of P. Ws. Fazal Dad and A.I Haider have been materially improved so as to show the presence of more ocular witnesses. Both these versions run counter to the version of the prosecution story as disclosed by P. W. Nawab, police statement of A.I Haidar and the circumstantial evidence of the recovery of two bullet shells from point No. 3, where Tamash deceased allegedly took shelter and received the injuries. Also in the dying declaration P. W.
Tamash deposed that he and his brother Fazal Dad were weeding the field, when the three accused came armed with shotguns and rifle and suddenly fired at them, and that he was hit with the shot of Khalil. In this statement the presence of P. W. Dad Muhammad alias Kharogai and Abdul Mastan a labourers weeding the field has not been mentioned. In a sudden firing it would be practically impossible to say with certainty for the victim as to whose shot was effective, but still Tamash ha attributed the effective shot to Khalil appellant. This dying declaration shows the presence of A.I Haider (P. W. 11) and Raza Khan abandoned witness at the spot at the time of occurrence. In his police statement Fazal Dad P. W. Has not mentioned the presence of these two witnesses at the spot. It is in evidence that, the venue of the occurrence is about a furlong from village Ambadher to which the deceased and Fazal Dad belong. From the version of the prosecution story as disclosed by the evidence of Nawab, police statement of A.I Haider and the recovery of two empties from point No. 3, it can safely be presumed that the deceased had a single handed combat with his assailants and that after the occurrence Fazal Dad was attracted to the spot from his close by village. It is also in evidence of P. W. Fazal Dad that after the receipt of the injury Tamash deceased was taken to the village. Thus the reasonable probability that the dying declaration was made by Tamash deceased at the prompting of Fazal Dad cannot be excluded. Of course from the evidence of Muhammad Tahir, A. S. I. (P. W. 15), coupled with the medical evidence, we can safely infer that Tamash deceased was in conscious state of mind and was able to make a coherent dying statement at the C police station. P. W. Fazal Dad and Tamash deceased are brothers and have enmity with Khalil appellant on account of litigation--- Thus both of them are interested and hostile to Khalil appellant--- The interested dying declaration of Tamash deceased is not sup--ported in material particulars by- the ocular evidence.
19. At page 225 of Monir's Law of Evidence, 4th Edition, Volume 1, on the subject of Evidential value of dying declarations, a quotation from Taylor, page 722, is given as. Under :- "But, though declarations, delibertations, made under a. Solemn sense of impending death and concerning circumstances where in the deceased is not likely to be mistaken, are entitled: to great weight, it should always be recollected that the accused has not the power of cross-examination, a power as effectual in eliciting the truth as is the obligation of an oath; and that when a witness has not a deep sense of accountability to his maker, feelings of anger or revenge, or, in the case of mutual conflict, the natural desire of screening his own misconduct, may affect the accuracy of his statements, and give a false coloring to the whole transaction."
PLD 1965 SC 151), the rule laid down about dying declaration is:- " . . Yet, this being the only evidence available, it is the duty of the Courts to decide whether or not they can believe it. To accept it without considering the surrounding circumstances would be totally inconsistent with the safe dispensation of justice. To accept it on considerations of expressions of opinion regarding similar declarations in precedent cases, even if those opinions are accompanied by words indicating reliance on some principle of law, is no less dangerous. Only after the most careful scrutiny, applied to all the physical circumstances as they appear from the evidence, is it possible to decide whether it can be said, with the degree of certainty which is made obligatory for reaching a conclusion of guilt, that the account given by the deceased of the manner in which he met his death is worthy of belief."
Thus after the most careful scrutiny of the physical circumstances and the evidence, we reach at a conclusion that the account given by the deceased of the manner in which he met his death is unworthy of belief.
20. There is yet another aspect for consideration as to how this flareup occurred. The prosecution has failed to disclose the immediate cause of the attack by the appellants. Khalil appellant is admittedly in possession of the disputed land and he is not surrendering the possession to the father of Tamash deceased. The cause for attack would be thus for the deceased rather than the appellants. In the circumstances, the explanation of Khalil appellant that the deceased party went to take possession of the land by force, who were resisted by some servants of the widow and the minor, resulting in riot, is more probable.
21. From the dying declaration, the ocular evidence and the circumstantial evidence, we are of the view that the prosecution has failed to prove as to how why and where the occurrence took place and that the prosecution has deliberately suppressed the truth of the incident of the murder of Tamash deceased or the attempted murder of Fazal Dad P. W.
22. While giving the benefit of doubt to the appellants, we accept both the appeals, set aside the convictions and sentences of the three appellants, and acquit them. The death sentence of Khalil appellant is not confirmed.
23. The revision petition for enhancement of sentence automatically fails and is dismissed.
S. A. H.