' WALI MUHAMMAD KHAN, J.--- Mir Bashai son of Niaz Gul resident of Shah Baz Sheikhani, Police Station Saddar, Tchsil and District Bannu, convict-appellant and Sher Gul (acquitted accused) were jointly tried by the learned Additional Sessions Judge, Bannu for the murder of Ibrahim deceased son of Kaboot Khan, on 22-1-1985 at Deegar Vela in the limits of Police Station Saddar, by firing at him in furtherance of their common intention along with Zarin (absconding accused) and also for attempting at the life of. Gul Daraz P.W. Brother of the deceased. The convict-appellant was convicted under section 302, P.P.C. For the murder of Ibrahim deceased and sentenced to life imprisonment. However, he was acquitted of the charge under section 307/34, P.P.C. For attempting at the life of Gul Daraz P.W. He was extended the benefit of section 382-B, Cr.P.C. His co-accused Sher Gul was acquitted vide order of the learned Additional Sessions Judge, Bannu dated 31-7- 1988. The convict-appellant has challenged his conviction and sentence through the instant Criminal Appeal No,19 of 1988 while Gul Daraz P.W. Has filed Criminal Revision No,12 of 1988 for the enhancement of the sentence of the appellant from life imprisonment to death. The State has not appealed against the order of acquittal of the appellant and that of Sher Gul, his co-accused under section 307/34, P.P.C. Resulting in finality of that portion of the order. Through this single judgment the instant criminal appeal as well as the criminal revision arc being disposed of.
2. The background of the case in brief is that on the day of occurrence at Deegar Vela the deceased Ibrahim was busy making ablution outside his house when Mir Bashai appellant and Zarin absconding accused armed with Topaks came there and Mir Bashai appellant ordered Zarin absconder to fire, whereupon Zarin absconder fired one shot with his shotgun at the deceased as a result of which he (deceased) was hit and fell down on the ground while accused ran away. The motive disclosed is that a son of Khani Gul i,e, brother of Zarin absconder was murdered for which the deceased and others were charged. The deceased, then injured, was rushed to the Civil Hospital Bannu by the villagers where, on the arrival of the police, he made the report which was recorded, in the form of dying declaration, by Muhammad Khan S.H.O. (P.W.7) vide Murasila Exh.P.A., correctly incorporated in the F.I.R. Exh.PA./1. The deceased, then injured, was in perfect senses according to the version of the S.H.O. And the Murasila Exh.PA. Was read over to him in the presence of Umar An Shah and Mir Ghajan Shah witnesses and he, after admitting the contents thereof thumb-impressed the same and so did the attesting witnesses. In the rider to the F.I.R. It is further added on behalf of Ibrahim deceased that after he was hit, further firing had also started. The Investigating Officer prepared the injury sheet Exh.P.H. Of Ibrahim deceased, then injured. He also prepared the injury sheet Exh.P.F. Of Gul Daraz P.W.
3. For carrying out of the investigation of the case, the Investigating Officer started for the spot and on reaching there he prepared site plan Exh.PE at the instance of Mir Salam and Azim P.Ws. With all its footnotes and drawings correctly. He recovered blood-stained earth and one Kooza Exh.P6 from the place where Ibrahim deceased had been fired at and injured which he took into possession vide memo Exh.P.D. He also took into possession blood-stained earth from the place where Guldaraz P.W. Was injured vide the same memo and sealed them into separate parcels. Nasrullah F.C. No,490 brought shirt Exh.P.2, Shalwar Exh.P.3, Jarsi Exh.P.4 and Banyan Exh.P.5 all blood stained and having cut marks belonging to deceased Ibrahim and produced the same before the Investigating Officer who took these articles into his possession vide memo Exh.P.C. Similarly Loban F.C. No,224 brought Shalwar Exh.P.1 blood-stained and having cut marks belonging to Guldraz P.W.
And produced the same before the I.O. Which was also taken into possession vide memo Exh.P.B.
Accused were not traceable and, therefore, proceedings under section 87, Cr.P.C. Were initiated against them. Sher Gul accused was arrested on 3-2-1985 while Mir Bashai accused was arrested on 4-2-1985. A D.B. Shotgun Exh.P.7 licensed in the name of Zaribat son of the appellant along with bandolier Exh.P.8 containing 25 cartridges and license copy Exh.P.9 were recovered from the house search of the appellant which were taken into possession vide memo. Exh.P.N. The deceased later on died and his inquest report Exh.P.M./1 was prepared by A.S.I. Noor Khanan and the charge under section 302, P.P.C. Was also added in the F.I.R. Since the said A.S.I. Died before his statement could be recorded, Muhammad Khan S.H.O. (P.W.7) also testified to the correctness of the same as he was conversant with his handwriting and signature. After the completion of investigation, complete challan was submitted to the Court of Illaqa Magistrate who in his turn sent up the accused- appellant and Sher Gul acquitted accused for trial to the Court of Session.
4. After complying with the procedural formalities, charge under sections 302/34 and 307/34, P.P.C.
Was framed against appellant and Sher Gul acquitted accused, to which they pleaded not guilty and claimed trial. The prosecution in support of its case, examined Umar An Shah (P.W.1), Khanzada F.C. No,863 (P.W.2), Dr. Karim Khan (P.W.3), Gul Daraz (P.W.4), Mir Salam (P.W.5), Amir Abdur Rehman S.H.O. (P.W.6), Muhammad Khan Retired Inspector (P.W.7), Dr. Muhammad Nafees-ud-Din (P.W.8) and Sher Afzal F.C. No,235 (P.W.9) and abandoned the remaining P.Ws. Being unnecessary. Of them Guldaraz (P.W.4), Mir Salam (P.W.5) are the eye-witnesses of the occurrence whereas the others are more or less of formal nature whose depositions have already been referred to above. Gul Daraz P.W.4 stated that his brother Ibrahim deceased was making ablution near the gate of their house, whereas he and his other brothers were standing nearby when the appellant and Zarin absconding accused came there from village side and reaching there Mir Bashai appellant ordered Zarin absconder to fire at Ibrahim. According to him, both of them were armed with shotguns and both of them fired at Ibrahim deceased and also fired at them and ran away. The witnesses added that Ibrahim was hit with the fireshot of Zarin absconder and fell down and was removed by the villagers to the Hospital who were attracted to the spot on the fire shots. The witness, on Court question, on the conclusion of the cross-examination, further stated that he was also fired at by the accused Sher Gul and Mir Bashai. Mr. Salam (P.W.5) deposed that he was present at the time of occurrence when the appellant Mir Bashai and Zarin absconder armed with shotguns came and, at the bidding of the appellant, Zarin absconder fired at the deceased hitting and injuring him. He added that thereafter Guldaraz came out of his house and had gone for some distance when he was also fired at by Sher Gul accused but missed him. Mr. Bashai appellant also fired at him which proved effective. Umar Ali Shah (P.W.1) attesting witness of the Murasila Exh.P.A.- cum-dying declaration did not support the prosecution case and as such he was declared hostile at the request of the Public Prosecutor who cross-examined him at length. The other attesting witness of the dying declaration was in consequence abandoned.
5. Dr. Muhammad Nafees-ud-Din (P.W.8) had conducted the autopsy on the dead body of the deceased Ibrahim son of Kaboot Khan on 24-1-1985 at 9-45 a.m. And found the following:- ' EXTERNAL EXAMINATION.
(1) 6 firearm inlet wounds on the front of abdomen above the umbilicus in an area of 4" diameter involving the area above the umbilicus and right hypochondria.
(2) Five firearm outlet wounds on the left lateral side of flank in an area of about 3" just above the upper margin of the left hip bone, each measuring about 3/4" x 3/4".
(3) One firearm outlet wound on the lateral side of left hip bone measuring about 3/4" x 3/4."
INTERNAL EXAMINATION.
' Walls, ribs and cartilages, blood vessels at the site of injury of the Thorax were injured. Walls, stomach, peritoneum, small and large intestines, liver (sic).
' In his opinion the deceased had died due to shock and heamorrhage caused by fire-arm. Time between injury and death was 18 to 24 hours and between death and post-mortem was 16 to 20 hours. He testified to the correctness of his postmortem report Exh.P.M. And pictorial Exh.P.M./2 prepared by him and remarks on the injury sheet Exh.PH and inquest report Exh.P.M./1.
6. Accused were examined under section 342, Cr.P.C. And they denied the allegations brought out against them and put to them in the form of questions and answers. They did not like to be examined under section 340(2), Cr.P.C. Nor liked to produce defence evidence. On the appraisal of the evidence so produced the learned trial Judge vide his order dated 31-7-1988 convicted the appellant under section 302, P.P.C. And sentenced him to life imprisonment for the murder of Ibrahim deceased.
7. We have heard Syed Zaffar Abbas Zaidi, Advocate for the appellant, Mr. Ijaz Muhammad Khan, Assistant Advocate-General for the State and Khawaja Nawaz Khan, Advocate for the complainant/petitioner and have minutely gone through the record of the case with their assistance.
8. Much was argued on either side regarding the veracity of the ocular witnesses as well as the genuineness of the dying declaration relied upon by the learned trial Judge in convicting the appellant for the murder of Ibrahim deceased. However, we do not intend to dilate upon the arguments advanced on either side, lest it may affect the case of the prosecution or defence at the time of the trial of the absconding accused when he is arrested and put on trial. We shall, therefore, restrict our discussion to the portion of the evidence and that of the dying declaration which implicate the appellant in the instant tragedy.
9. Admittedly, there existed blood feud between the parties inasmuch as a brother of Zarin absconder and nephew of Mir Bashai appellant and Sher Gul acquitted accused was murdered a year prior to the occurrence for which Ibrahim deceased and others were charged. Gul Daraz (P.W.4) and Mir Salam (P.W.5) are the brothers of Ibrahim deceased and, therefore, the entire evidence including the dying declaration is of interested nature and for the safe dispensation of justice its close scrutiny is necessary before fixing responsibility on any of the accused charged therein.
10. No doubt sanctity under the law is attached to the dying declarations and the version recorded therein is generally presumed to be true as it comes from the mouth of a person who apprehends imminent death and is expected to shun all towards everybody and to state nothing but the truth.
Nevertheless, prudence requires that a dying declaration too, just like other ocular evidence, has to be subjected to minute scrutiny before it is made the sole basis for the conviction of the persons charged for the offence of murder and more so, when there already exists blood-feud between them, and the tendency to rope in the innocent along with the guilty is a routine these days. The maxim `falsus in uno, falsus in omnibus" has no longer universal application and now it is well- settled that while analyzing the evidence in a criminal case, in which several accused face trial, the Court, if satisfied that the evidence against some of them is not free from doubt, can sift the grain from the chaff and rely on that part of the evidence which the Court regards as worthy of credence and ignore the rest of it. This the Court has to resort to as a matter of abundant precaution. There is no reason why this practice should not be adopted in the matter of dying declarations as well because they are obviously recorded in the absence of the accused who are deprived of the privilege of cross-examining the declarant to elicit truth. The August Supreme Court has also approved the aforesaid division of credibility in its judgment in case `Tawaib Khan and another v.
The State' reported as PLD 1970 SC 13.
11. In the case in hand the Murasila Exh.PA. Was recorded in the form of dying declaration and was duly witnessed by two persons, one of whom, Umar Ali Shah (P.W.1) resiled from corroborating the contents thereof while the other was not produced. Nevertheless, Muhammad Khan S.H.O. (P.W.7) who recorded the Murasila Exh.PA. Has testified to the correctness of the same. He positively asserted that the deceased, then in injured condition, was in perfect senses and could speak coherently. The occurrence apparently took place in broad daylight and the parties being known to each other, there could be no chance of mistaken identity. However, to fix vicarious liability on the appellant, the prosecution was bound to establish pre-concert and pre-planning amongst the assailants for the commission of the present occurrence which is lacking in this case. Sher Gul (acquitted accused) was neither named in the dying declaration nor he was attributed any role whatsoever. He was later on involved on the evidence of the witnesses who are the brothers of the deceased. As stated earlier, his participation in the instant crime was not accepted by the learned trial Judge and he was acquitted. Gul Daraz (P.W.4) in his statement in Court, charged the appellant for firing at and injuring him but the learned trial Judge did not rely upon this portion of his deposition and acquitted the appellant of the charge under section 307/34, P.P.C. There is no corroborative circumstantial evidence available on the record connecting the appellant with the murder of the deceased Ibrahim except the role of Lalkara attributed to him in the dying declaration cum-Eurasia Exh.PA. Though both the appellant and the absconding accused Zarin have been shown armed with shotguns hut, astonishingly the appellant did not choose to fire at the deceased but rest contended with only ordering his nephew, Zarin absconder to avenge the murder of his brother as if he himself was not concerned in the affair. Mir Bashai appellant is aged 58/60 years and being the elder of the family might have been named in the dying declaration and given the proverbial role of ordering the absconding accused to fire, with intent to deter him from defending the main accused. Without casting any aspersion on the integrity of the deceased Ibrahim or the genuineness of the dying declaration made by him, we feel that the involvement of Mir Bashai appellant in the instant' crime is not free from reasonable doubt.
12. Resultantly we accept the instant Criminal Appeal No,19 of 1988, set aside the conviction and sentence imposed upon the appellant by the learned Additional Sessions Judge, Bannu vide his order dated 31-7-1988 and acquit him. He is in custody and be set at liberty forthwith if not required to be detained in any other case. Criminal Revision No,12 of 1988 accordingly stands dismissed.